Davis et al v. The City of New York et al

Filing 153

MEMORANDUM AND OPINION re: 119 MOTION to Compel Production of Documents filed by Edwin Larregui, Patrick Littlejohn, R.E., Anthony Anderson, Shawne Jones, Andrew Washington, Adam Cooper, Roman Jackson, Vaughn Frederick, William Turner, Lashaun Smit h, Raymond Osorio, David Wilson, Eleanor Britt, Kelton Davis, Geneva Wilson, Kristin Johnson, Hector Suarez. Plaintiffs' motion to compel is granted to the extent that it seeks an Order directing the City to produce Documents 16, 17, 21, 23, 26, 51, 53, 54, 61, 62, 68, 69, 73, 74, 97, 98, 99, 100{ 101, 102, 103, 104, 122, 123, 124, and 125. In all other respects, plaintiffs' motion to compel is denied. (Signed by Magistrate Judge Henry B. Pitman on 2/27/2012) (jar)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
KELTON DAVIS, et al.,
Plaintiffs,

:

THE CITY OF NEW YORK, et al.,
Defendants.

10 Civ. 699 (SAS)(HBP)

:

-against-

:

OPINION
AND ORDER

:
:

-----------------------------------X

PITMAN, United States Magistrate Judge:

I.

Introduction

This is a civil rights action brought pursuant to 42
U.S.C. § 1983, and other federal and state laws, in which the
plaintiffs, on behalf of themselves and a class of similarly
situated individuals, seek injunctive and declaratory relief and
damages resulting from defendants' allegedly unlawful trespass
enforcement policies and practices.
By notice of motion dated October 21, 2011, plaintiffs
move for an Order pursuant to Rule 37 of the Federal Rules of
Civil Procedure, compelling the production of certain documents1

1

A list of the documents plaintiffs challenge is attached
as Exhibit B to the Amended Declaration of Jon Hee Lee in Support
of Plaintiffs' Motion to Compel Production of Documents, dated
Oct. 26, 2011 (Docket Item 122)("Lee Decl.").

that defendants are withholding on the basis of the attorneyclient and the deliberative process privileges (Docket Item 119).
For the reasons set forth below, plaintiffs' motion is granted in
part and denied in part.

II.

Facts

A.

Background

Plaintiffs allege that defendants, the City of New York
(the "City") and the New York City Housing Authority ("NYCHA"),
"operating through and in conjunction with the New York City
Police Department ("NYPD"), conduct, enforce and sanction unlawful trespass arrest policies and practices [which] result in a
pattern and practice of unlawful stops, seizures, questioning,
frisks, searches, and arrests of residents of, and authorized
visitors to, NYCHA public housing residential property" (Amended
Complaint, dated May 27, 2011 (Docket Item 69) at ¶ 2).

Plain-

tiffs' allegations are set forth in greater detail in an opinion
issued by the Honorable Shira A. Scheindlin, United States
District Judge, denying the City's motion for partial summary
judgement.

Davis v. City of N.Y., 10 Civ. 699 (SAS), 2011 WL

2652433 (S.D.N.Y. July 5, 2011).

Judge Scheindlin summarized the

2

facts relevant to the present discovery dispute in an Order,
dated May 5, 2011, as follows:
At the time this suit was instituted, the NYPD policy
at issue was reflected, in part, in section 212–60 of
the NYPD Patrol Guide ("P.G. 212–60"), entitled "Interior Vertical Patrol of Housing Authority Buildings."
In response to complaints [and] concerns . . . .
NYPD Police Commissioner Raymond Kelly delegated to S.
Andrew Schaffer, NYPD Deputy Commissioner for Legal
Matters, the task of revising P.G. 212–60 in consultation with high-ranking NYPD personnel and attorneys
from the New York City Corporation Counsel. On July 8,
2010, P.G. 212–60 was replaced by Interim Order number
23 ("I.O. 23"). Although I.O. 23 contains much of the
same information as its predecessor, it differs in that
it "discusses in enhanced detail when 'a uniformed
member of the service may approach and question persons
who may be violating Housing Authority rules and regulations, including potentially unauthorized persons
found in Housing Authority buildings.'"
I.O. 23 was issued after the commencement of this
suit, but plaintiffs assert that their claims "challenge[ ] generally Defendants' overall vertical patrol
policies and trespass enforcement practices, including
I.O. 23." Plaintiffs have accordingly demanded that
the City produce, as part of its discovery obligations,
"any drafts, correspondence or memoranda concerning the
development and implementation of Interim Order 23" and
"any drafts, correspondence or memoranda concerning the
development and implementation of the corresponding
training curriculum, as well as all revisions to the
curriculum."
Davis v. City of N.Y., 10 Civ. 699 (SAS), 2011 WL 1742748 at *1*2

(S.D.N.Y. May 5, 2011)(footnotes omitted).
Two categories of documents concerning the revisions to

P.G. 212-60 are at issue here:

"(1) legal memoranda and NYPD

3

Legal Bureau analysis of vertical patrols in NYCHA developments;
[and] (2) correspondence and draft revisions to PG 212–60"
("Category One" and Category Two," respectively) (Letter Brief of
Tonya Jenerette, counsel to the City, dated Mar. 15, 2011
("City's Letter Brief"), at 3).

In support of its assertions of

privilege, the City submitted a declaration from S. Andrew
Schaffer, dated March 15, 2011, two privilege logs dated February
25, 2011 and April 7, 2011, and a copy of P.G. 212-60 and I.O. 23
(see City's Letter Brief and attached exhibits) .
Judge Scheindlin, in her May 5 Order addressing the
City's assertion of the deliberative process privilege, held that
"[o]n the whole, the privilege logs submitted by the City are
insufficiently detailed to allow the Court to assess the legitimacy and scope of its assertion of the deliberative process
privilege."

Davis v. City of N.Y., supra, 2011 WL 1742748 at *3.

Judge Scheindlin noted "two major deficiencies in the City's logs
that render them inadequate.

First, one or more columns [are]

marked 'N/A' for a significant number of entries.

Second, the

City too often employs vague, confusing, or conclusory descriptions in the 'Subject' column."
2011 WL 1742748 at *3.

Davis v. City of N.Y., supra,

Judge Scheindlin noted that, although

"[t]he use of "'N/A' may in certain circumstances be appropriate,
[when] combined with a vague description of the subject matter of
4

the document, [the index submitted by defendants] leave[s] the
Court unable to assess" whether the assertion of a privilege, as
to a given document, is proper.

Davis v. City of N.Y., supra,

2011 WL 1742748 at *3.
Next, Judge Scheindlin noted that documents that fall
within Categories One and Two "are most likely" privileged
pursuant to the deliberative process privilege.

However, "to the

extent that documents in Category One do not relate to the
revisions of P.G. 212-60 [which is the operative policy under
deliberation during the relevant period], but rather constitute
analysis of NYPD's past policy and practice of vertical patrols
in NYCHA developments, they cannot be considered predecisional,"
and would not, therefore, be protected by the deliberative
process privilege.
at *5.

Davis v. City of N.Y., supra, 2011 WL 1742748

Accordingly, Judge Scheindlin ordered the City to "revise

its privilege logs [and provide] more detailed information about
what is actually contained in the documents subsumed under
Category One . . . so that plaintiffs and the Court can assess

5

the propriety of the assertions of privilege."2

Davis v. City of

N.Y., supra, 2011 WL 1742748 at *5.
Finally, Judge Scheindlin noted that "[c]ertain entries
in the [City's privilege] log reflect a blatant abuse of the
assertion of privilege," and issued the following instruction to
the City:
Thus while I do not rule here on the applicability of
the attorney-client . . . privilege[] as [it has] not
been briefed, the City is cautioned to reassess its
assertion of all privileges carefully prior to resubmitting the logs. If a random in camera review of a
selected group of documents on the privilege logs
reveals that the assertion of privilege was baseless,
the Court will not hesitate to find that the City has
waived any claim of privilege with regard to the remainder of the documents.
Davis v. City of N.Y., supra, 2011 WL 1742748 at *4.

B.

The Present
Discovery Dispute

Pursuant to Judge Scheindlin's May 5 Order, the City
submitted a revised privilege log on May 27, 2011, as well as a
"redlined" version illustrating the revisions made to the origi-

2

Judge Scheindlin also ordered the City to revise its
privilege logs with respect to Category Two documents; however,
plaintiffs do not presently challenge the assertion of the
deliberative process privilege with respect to Category Two
documents (Exhibit D to the Lee Decl.). Plaintiffs do argue,
however, that they have a substantial need for the Category Two
documents sufficient to overcome the deliberative process
privilege (see infra Part III.A.4).
6

nal privilege log (Amended Declaration of Jon Hee Lee in Support
of Plaintiffs' Motion to Compel Production of Documents, dated
Oct. 26, 2011 ("Lee Decl.")(Docket Item 122), at ¶¶ 3-4).

125

documents are at issue in this motion; the City asserts they are
protected by the deliberative process privilege, the attorneyclient privilege, or both (see Exhibit J to the Declaration of
Judson Vickers in Opposition to Plaintiffs' Motion to Compel
Production of Documents, dated Nov. 9, 2011 ("Vickers
Decl.")(Docket Item 128)).3
The City asserts the deliberative process privilege as
to 107 documents; the plaintiffs challenge the assertion of this
privilege as to 19 of these documents, on the grounds that the
City has not established, through the information provided in the
revised privilege log, or through other evidence, that these
documents are predecisional and deliberative –- the two essential
elements of the deliberative process privilege.

The plaintiffs

also argue that all 107 documents withheld on the basis of the
deliberative process privilege should be produced because the

3

The index contained in Exhibit J to the Vickers
Declaration effectively summarizes the privilege log entries in
issue here, as well as plaintiffs' arguments as to each entry.
Accordingly, for the purposes of this Opinion and Order, I shall
use the document numbers from Exhibit J to the Vickers
Declaration to refer to the individual documents, rather then
referring to the documents by Bates number.
7

plaintiffs' need for the documents, outweighs the publics'
interest in nondisclosure (Exhibit J to Vickers Decl.).
The City also asserts the attorney-client privilege as
to all 125 documents in issue; the plaintiffs challenge that
assertion with respect to 124 of those documents, either on the
ground that the City has provided insufficient information in its
revised privilege log to support the assertions of privilege, or
on the ground that the information in the privilege log does not
suggest a communication to a client containing legal advice
(Exhibit J to Vickers Decl.).

III.

Analysis

A.

Deliberative
Process Privilege

1.

Legal Principals
Related to the Deliberate
Process Privilege

Questions of privilege in federal civil rights cases
are governed by federal law.

Fed. R. Evid. 501; von Bulow by

Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987).

The

deliberative process privilege was comprehensively described by
the Honorable Richard J. Sullivan, United States District Judge,

8

in MacNamara v. City of N.Y., 249 F.R.D. 70, 77-78 (S.D.N.Y.
2008):
"The deliberative process 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 Dep't of
Interior v. Klamath Water Users Protective Ass'n, 532
U.S. 1, 8-9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001)).
An "inter- or intra-agency document" may be subject to
the privilege if it is both (1) "predecisional" and (2)
"deliberative." La Raza, 411 F.3d at 356 (quoting
Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 482
(2d Cir. 1999)) (additional internal citations omitted).
A document is predecisional "when it is prepared
in order to assist an agency decisionmaker in arriving
at his decision." Tigue v. United States Dep't of
Justice, 312 F.3d 70, 80 (2d Cir. 2002). The Second
Circuit has noted some factors to consider in determining whether a document is "predecisional," including
whether the organization asserting the privilege can
(1) "pinpoint the specific . . . decision to which the
document correlates" and (2) "verify that the document
precedes, in temporal sequence, the 'decision' to which
it relates." Grand Cent. P'ship, 166 F.3d at 482
(quoting Providence Journal Co. v. United States Dep't
of the Army, 981 F.2d 552, 557 (1st Cir. 1992)).
A document is deliberative when it is "actually .
. . related to the process by which policies are formulated." Grand Cent. P'ship, 166 F.3d at 482 (citing
Hopkins, 929 F.2d at 84) (additional citation and
internal quotation marks omitted). In other words,
"the privilege does not protect a document which is
merely peripheral to actual policy formation; the
record must bear on the formulation or exercise of
policy-oriented judgment." Tigue, 312 F.3d at 80 (internal quotation marks and citation omitted). Thus,
9

the privilege "focus[es] on documents 'reflecting
advisory opinions, recommendations and deliberations
comprising part of a process by which governmental
decisions and policies are formulated.'" Grand Cent.
P'ship, 166 F.3d at 482 (quoting Hopkins, 929 F.2d at
84-85) (additional internal quotation marks and citation omitted). In particular, it is well-settled that
"[d]raft documents, by their very nature, are typically
predecisional and deliberative. They reflect only the
tentative view of their authors; views that might be
altered or rejected upon further deliberation either by
their authors or by superiors." Exxon Corp. v. Dep't
of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983) (internal quotation marks and citation omitted); see also
Nat'l Council of La Raza v. Dep't of Justice, 339 F.
Supp. 2d 572, 573 (S.D.N.Y. 2004) ("Drafts and comments
on documents are quintessentially predecisional and
deliberative.").
Nevertheless, a document is not "deliberative"
where it concerns "purely factual" information regarding, for example, investigative matters or factual
observations. See Grand Cent. P'ship, 166 F.3d at 482;
Hopkins v. U.S. Dep't of Hous. and Urban Dev., 929 F.2d
81, 85 (2d Cir. 1991). "Thus, factual findings and
conclusions, as opposed to opinions and recommendations, are not protected." E.B. v. New York City Bd.
of Educ., 233 F.R.D. 289, 292 (E.D.N.Y. 2005) (internal
quotation marks and citation omitted).

10

2.

The Requirement of
an Index of Documents
Withheld on the
Ground of Privilege

Federal Rule of Civil Procedure Section 26(b)(5)4 and
Local Civil Rule 26.25 both require a party withholding documents
4

Fed.R.Civ.P. 26(b)(5) provides:
When a party withholds information otherwise
discoverable by claiming that the information is
privileged or subject to protection as trial
preparation material, the party must:
(i)

expressly make the claim; and

(ii) describe the nature of the documents,
communications, or tangible things not produced or
disclosed -- and do so in a manner that, without
revealing information itself privileged or
protected, will enable other parties to assess the
claim.
5

Local Civil Rule 26.2 provides:
(a) Unless otherwise agreed by the parties or
directed by the Court, where a claim of privilege is
asserted in objecting to any means of discovery or
disclosure . . . and an answer is not provided on the
basis of such assertion,
(1) the person asserting the privilege shall
identify the nature of the privilege (including
work product) which is being claimed and, if the
privilege is governed by state law, indicate the
state's privilege rule being invoked; and
(2) the following information shall be
provided in the objection . . . unless divulgence
of such information would cause disclosure of the
allegedly privileged information:
(continued...)
11

on the basis of a privilege to prepare an index of the withheld
documents.

In order to satisfy the requirements of these rules,

the index of documents withheld must, "as to each document, . . .
set[ ] forth specific facts that, if credited, would suffice to
establish each element of the privilege or immunity that is
claimed."

Golden Trade, S.r.L. v. Lee Apparel Co., 90 Civ. 6291

(JMC), 1992 WL 367070 at *5 (S.D.N.Y. Nov. 20, 1992) (Dolinger,
M.J.); see also Willemijn Houdstermaatschaapij BV v. Apollo
Computer Inc., 707 F. Supp. 1429, 1439 (D. Del. 1989) ("[A] party
asserting work product protection must 'identify the withheld
documents with sufficient particularity that the opposing counsel
can intelligently argue that the privilege ought not to apply.'"), quoting Petz v. Ethan Allen, Inc., 113 F.R.D. 494, 497
(D. Conn. 1985).
Where a properly prepared index of withheld documents
has been served, the withholding party's obligation to produce
evidence to sustain its assertions of privilege should be limited

5

(...continued)
(A) For documents: (i) the type of
document, e.g., letter or memorandum; (ii)
the general subject matter of the document;
(iii) the date of the document; and (iv) the
author of the document, the addressees of the
document, and any other recipients, and,
where not apparent, the relationship of the
author, addressees, and recipients to each
other. . . .
12

to those elements of the privilege or protection challenged by
the adversary.

ECDC Envtl. L.C. v. N.Y. Marine & Gen. Ins. Co.,

96 Civ. 6033 (BSJ)(HBP), 1998 WL 614478 at *3-*4 (S.D.N.Y. June
4, 1998) (Pitman, M.J.).

As the parties asserting privilege,

defendants have the burden of establishing through its privilege
log, affidavits, or other evidentiary material that the elements
of the privilege exist.

See Johnson Matthey, Inc. v. Research

Corp., 01 Civ. 8115 (MBM)(FM), 2002 WL 31235717 at *3 (S.D.N.Y.
Oct. 3, 2002) (Mass, M.J.) ("[W]here the information in the
privilege log is insufficient to establish a factual basis for
the privilege, the proponent of the privilege bears the burden of
showing its applicability, a gap which often is filled through an
affidavit or deposition testimony.").

3.

Plaintiffs' Specific
Challenges to
the Assertion of the
Deliberative
Process Privilege

The plaintiffs' argue that, as to 19 of the documents
in issue,6 "[t]he City has not established that [they] are both
predecisional and deliberative" (Memorandum of Law in Support of

6

These are Documents 2, 15, 16, 17, 19, 21, 24, 25, 46, 50,
51, 54, 55, 60, 68, 73, 74, 96, and 105 on Exhibit J to the
Vickers Decl.
13

Plaintiffs' Motion to Compel Production of Documents, dated Oct.
21, 2011 ("Memo. in Support")(Docket Item 120), at 5).
Except for Document 96, each of these documents appears
to fall within Category One –- "legal memoranda and NYPD Legal
Bureau analysis of vertical patrols in NYCHA developments."
Judge Scheindlin, in her May 5 Order, specifically directed the
City to "revise its privilege logs with more detailed information
about what is actually contained in the documents subsumed under
Category One," because, "to the extent that documents in Category
One do not relate to the revisions of P.G. 212-60, but rather
constitute analysis of NYPD's past policy and practice of vertical patrols in NYCHA developments, they cannot be considered
predecisional."

Davis v. City of N.Y., supra, 2011 WL 1742748 at

*5.
A review of the "redlined" version of City's Courtordered revised privilege log clearly demonstrates that the City
has made only the slightest revisions to the descriptions of some
of the Category One documents,7 while others were not revised at

7

For example, in Documents 17 and 51, the City merely added
a parentheses stating "w/Handwritten Notations" to the "Subject"
description; in Document 54, the City removed the word "issues"
from the "Subject" description; and in Document 74, the City
added the word "Draft" to the "Subject" description. None of
these changes addressed Judge Scheindlin's request for more
substantive information related to the nature of the document.
14

all.8

It appears as though the City made no attempt to comply

with Judge Scheindlin's Order and provide the Court with information it can use to determine whether the "legal memoranda" and
"analysis" in these Category One documents relate to past policies, or future revisions to a policy under deliberation.
Given the insufficient information provided in the
revised privilege log, I find that the City has failed to meet
its burden in establishing the deliberative process privilege
with respect to Documents 2, 15, 16, 17, 19, 21, 24, 25, 46, 50,
51, 54, 55, 60, 68, 73, 74, and 105.9

8

See Local Civil Rule 26.2;

Documents 2, 15, 21, 24, 25, 50, 60, and 105.

9

Although the City has offered to make the documents in
issue available for in camera review, this is not an adequate or
appropriate cure for the deficiencies in the City's privilege
log. First, Judge Scheindlin ordered the City to supplement its
privilege log. She did not give the City an option of electing
either to supplement its privilege log or submit the withheld
documents for in camera review. Second, if in camera review were
an adequate remedy to a deficient privilege log, there would be
little reason for litigants to comply with the Federal Rules of
Civil Procedure and the Local Rules and prepare an index of
documents withheld on the ground of privilege. Litigants could
merely submit the documents to the Court and let the Court try to
guess what privileges might be applicable and why, while the
adverse party would have no meaningful opportunity to participate
or to be heard. Third, in camera review of documents withheld on
the ground of privilege is only conducted in exceptional cases.
"In camera inspection is the exception rather than the rule . . .
." American S.S. Owners Mut. Prot. and Indem. Ass'n, Inc. v.
Alcoa S.S. Co., 04 Civ. 4309 (LAK)(JCF) 2006 WL 278131 at *2
(S.D.N.Y. Feb. 2, 2006) (Francis, M.J.), citing Collens v. City
of N.Y., No. 03 Civ. 4477 (JGK)(HBP), 2004 WL 1395228 at *2
(S.D.N.Y. June 22, 2004) (Pitman, M.J.).
15

United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 47374 (2d Cir. 1996)("general allegations" and "cursory
description[s]" "simply do not provide enough information to
support the privilege claim"); Safeco Ins. Co. of Am. v. M.E.S.,
Inc., 09-cv-3312 (ARR)(ALC), 2011 WL 6105014 at *4 (E.D.N.Y. Dec.
7, 2011) (holding when a privilege log is not "adequately detailed," the proponent does not meet its "heavy burden of proving
that the privilege or protection applies to the documents or
communications at issues" (internal quotation marks omitted));
Bodega Invs., LLC ex rel. Kreisberg v. United States, 08 Civ.
4065 (RMB)(MHD), 2009 WL 2634767 at *3 (S.D.N.Y. Aug. 21, 2009)
(Dolinger, M.J.); Resolution Trust Corp. v. Diamond, 773 F. Supp.
597, 602-06 (S.D.N.Y. 1991) (Carter, R., D.J.).

The City has

also waived the privilege, as to documents 2, 15, 16, 17, 19, 21,
24, 25, 46, 50, 51, 54, 55, 60, 68, 73, 74, and 105 by their
noncompliance with Judge Scheindlin's May 5 Order.
Because the plaintiffs do not challenge the City's
assertion of the attorney-client privilege as to Document 96 –which does not seem to be a Category One document -- the plaintiffs' motion to compel this Document is denied.

See Five

Borough Bicycle Club v. City of N.Y., 07 Civ. 2448 (LAK), 2008 WL
4302696 at *2 (S.D.N.Y. Sept. 16, 2008) (Kaplan, D.J.) ("There is
no need to rule on the deliberative process privilege claim as to
16

the remaining documents as long as the attorney-client and other
privilege claims with respect to them remain unchallenged and
unresolved.").

4.

Balancing of the
Parties' Interests

Plaintiffs challenge eighty-eight Category Two documents10 comprised of "correspondence and draft revisions to PG
212–60" on the ground that the deliberative process privilege
should be pierced due to their need to access these documents in
this litigation.

Plaintiffs do not otherwise challenge the

applicability of the deliberative process privilege to these
documents.
Unlike the attorney-client privilege, the deliberative
process privilege is not absolute.
[T]he deliberative process [is a] qualified privilege[] and, therefore, "when the existence of [the]
privilege is established, there is a need to balance
the public interest in nondisclosure against the need
of the particular litigant for access to the privileged
information." United States v. United States Currency
in Sum of Twenty One Thousand Nine Hundred Dollars, No.

10

These are Documents 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 14, 18, 20, 22, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37,
38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 49, 52, 56, 57, 58, 59,
63, 64, 65, 66, 67, 70, 71, 72, 75, 76, 77, 78, 79, 80, 81, 82,
83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 106, 107,
108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120,
and 121.
17

98 Civ. 6168 (SJ), 1999 WL 993721, at *2 (E.D.N.Y.
Sept. 21, 1999) (citing Friedman v. Bache Halsey Stuart
Shields, 738 F.2d 1336, 1341 (D.C. Cir. 1984), and
Raphael v. Aetna Cas. & Sur. Co., 744 F. Supp. 71,
74-75 (S.D.N.Y. 1990)) (additional internal citation
omitted).
Thus, in assessing the government's assertion of
privilege, "[t]he court must balance the interests
favoring and disfavoring disclosure, keeping in mind
that the burden of persuasion rests on the party seeking to prevent disclosure. The court must also consider the value of appropriate protective orders and
redactions." King, 121 F.R.D. at 190-91; see also
Kitevski v. City of New York, No. 04 Civ. 7402
(RCC)(RLE), 2006 WL 680527, at *3 (S.D.N.Y. March 16,
2006) ("Whether the showing of relevance and need rises
to the requisite level is a discretionary determination
that must necessarily be made on a case-by-case basis."); United States v. Sawinski, No. 00 Crim. 0499
(RPP), 2000 WL 1702032, at *3 (S.D.N.Y. Nov. 14, 2000)
(citing In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir.
1988)).
MacNamara v. City of N.Y., supra, 249 F.R.D. at 79-80.
In balancing the parties interests,
[f]actors favoring disclosure include (1) the relevance
of the requested materials to the [requesting party's]
case, (2) the importance of the materials to the [requesting party's] case, including the availability of
the information from alternative sources, (3) the
strength of the [requesting party's] case . . . , and
(4) the importance [of disclosure] to the public interest. Factors against disclosure include (1) threats to
public safety, (2) the invasion of government officials' privacy, (3) the weakening of government programs, and (4) the chilling of internal candor.
In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 643
F. Supp. 2d 439, 442-43 (S.D.N.Y. 2009) (Scheindlin, D.J.); see
also In re Delphi Corp. v. United States, 276 F.R.D. 81, 85-86
18

(S.D.N.Y. 2011) (Castel, D.J.), citing Export-Import Bank of the
United States v. Asia Pulp & Paper Co., 232 F.R.D. 103, 109
(S.D.N.Y. 2005) (Francis, M.J).
The importance of the evidence to the plaintiffs' case,
or the plaintiffs' need for the evidence, has consistently been
viewed as "the most important of all factors."

King v. Conde,

121 F.R.D. 180, 194 (E.D.N.Y. 1988); Otterson v. Nat. R.R.
Passenger Corp., 228 F.R.D. 205, 209 (S.D.N.Y. 2005) (Kaplan,
D.J.); Export-Import Bank of the United States v. Asia Pulp &
Paper Co., supra, 232 F.R.D. at 109, citing In re Franklin Nat.
Bank Sec. Litig., 478 F. Supp. 577, 580-82 (E.D.N.Y. 1979).

The

critical factor is frequently whether the government's deliberations, motivations, or thought process themselves are genuinely
in issue in the case.

The privilege is routinely found to be

inapplicable where the agency deliberations are central to the
case.

See, e.g., MacNamara v. City of N.Y., 04 Civ. 9612

(KMK)(JCF), 2007 WL 755401 at *10 (S.D.N.Y. Mar. 14, 2007)
(Francis, M.J.) ("Accordingly, 'in a civil rights action where
the deliberative process of State or local officials is itself
genuinely in dispute, privileges designed to shield that process
from public scrutiny must yield to the overriding public policies
expressed in the civil rights laws.'" (quoting Grossman v.
Schwarz, 125 F.R.D. 376, 381 (S.D.N.Y. 1989) (Wood, D.J.)); Nat.
19

Res. Def. Council v. Fox, 94 Civ. 8424 (PKL)(HBP), 1998 WL 158671
at *5 (S.D.N.Y. Apr. 6, 1998) (Pitman, M.J.); Dep't of Econ. Dev.
v. Arthur Anderson & Co., 139 F.R.D. 295, 299 (S.D.N.Y. 1991)
(Stewart, D.J.) ("Where the adjudication of fraud claims turns
upon issues of [the agency's] knowledge, reliance, and causation,
direct evidence of the deliberative process is irreplaceable.");
Burka v. N.Y.C. Transit Auth., 110 F.R.D. 660, 667 (S.D.N.Y.
1986) (Francis, M.J.) ("Where the decision-making process itself
is the subject of the litigation, the deliberative privilege may
not be raised as a bar against disclosure of critical information.").

Other courts have found it to be a critical factor in a

balancing of interests test.

See, e.g., In re Delphi Corp. v.

United States, supra, 276 F.R.D. at 85-86 ("Where the deliberative or decisionmaking process is the 'central issue' in the
case, the need for the deliberative documents will outweigh the
possibility that disclosure will inhibit future candid debate
among agency decision-makers."); Resolution Trust Corp. v.
Diamond, supra, 773 F. Supp. at 605 ("[T]he considerations that
RTC took into account in its deliberations are directly in issue
in this case, making the contested evidence highly relevant by
the very fact that it is deliberative.").
Here, the plaintiffs do not contest the applicability
of the deliberative process privilege to the requested documents;
20

rather, they argue that they have substantial need for these
documents and that their need is sufficient to overcome the
privilege (Memo. in Support at 7).

I find that the plaintiffs

have not "demonstrated a sufficiently 'strong need' for the
materials to overcome the privilege."

Ingles v. City of N.Y., 01

Civ. 8279 (DC), 2004 WL 2274653 at *2 (S.D.N.Y. Oct. 8, 2004)
(Chin, then D.J., now Cir. J.); see also Otterson v. Nat. R.R.
Passenger Corp., supra, 228 F.R.D. at 209.

The NYPD Deputy

Commissioner for Legal Matters S. Andrew Schaffer, states in his
Declaration that:
[t]he personal views and opinions expressed are not
reflective of the ultimate reasons and rationales for
issuing Interim Order 23 . . . . The disclosure of
this information would create confusion as to the
ultimate basis for revising the Patrol Guide. In
addition, disclosure would inhibit the frank and candid
exchange of opinions that are part of the deliberative
process and which best inform final agency decisions
[and] would inhibit ongoing and future consultations
and deliberations that take place in the Department's
review of its procedures.
(Schaffer Decl. ¶¶ 13-14).

These concerns are the precise

reasons the deliberative process privilege has been recognized.
See MacNamara v. City of N.Y., supra, 249 F.R.D. at 77-78 ("[The
privilege] is based on the obvious realization that officials
will not communicate candidly among themselves if each remark is
a potential item of discovery and from page news." (internal
quotation marks and citations omitted)).
21

Although the Court in MacNamara v. City of N.Y.,
supra, 249 F.R.D. at 83, was not ultimately persuaded by the
argument that disclosure of protected documents would chill
internal candor, I find Deputy Commissioner Schaffer's concerns
to be compelling.

The City was faced with complaints about the

NYPD's practices which were brought before the Civilian Complaint
Review Board and raised by NYCHA representatives and tenant
leaders, and later, raised in the context of the current litigation (Schaffer Decl. ¶ 4).

The NYPD, therefore, sought to modify

its official policy so as to provide enhanced guidance to its
officers (Schaffer Decl. ¶ 11).

Deputy Commissioner Schaffer

does not claim that discussions about modifying policy will never
occur in the future; rather, he believes that openness in future
discussions will be made more difficult if public disclosure in
litigation is a real possibility.

See In re Methyl Tertiary

Butyl Ether (MTBE) Prods. Liab. Litig., supra, 643 F. Supp. 2d at
114 ("There is a danger that a fear of public disclosure could
chill candid debate among the case team members, resulting in
inefficient or ineffective site remediation decisions." (footnote
omitted)).
Moreover, unlike MacNamara, this is not a case in which
the deliberations themselves are in issue.

The plaintiffs are

not arguing, for example, that the City intentionally designed
22

I.O. 23 to set impermissibly vague standards for NYPD officers,
and, thereby, sanction illegal trespass enforcement policies and
practices.

Rather, the plaintiffs argue that the "[d]efendants

implemented and applied vertical patrol policies and trespass
enforcement practices in violation of state and federal law and
'in an intentionally discriminatory and race-based manner'"
(Memo. in Support at 7, citing Amended Complaint ¶¶ 198-216, 249)
(emphasis added).11
In addition, the plaintiffs fail to sufficiently
articulate a need for the draft documents.

Because plaintiffs

have not alleged the unlawfulness of I.O. 23 independent of its
application and implementation, and considering the fact that
plaintiffs have a copy of I.O. 23, there is no apparent need for
documents reflecting the underlying deliberations.

See Methyl

Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., supra, 643 F.
Supp. 2d at 114 ("Evaluation of the propriety of the NJDEP's
actions can be made through the use of non-privileged information

11

Additionally, Judge Scheindlin held, in her May 5 Order,
that the plaintiffs were not challenging the legality of I.O. 23
itself, but rather "seek to challenge defendants' overall
vertical patrol policies and trespass enforcement practices.
Plaintiffs' position is that those practices have been and remain
discriminatory, regardless of whether they are manifested in P.O.
212-60, I.O. 23, or any other policy." Davis v. City of N.Y.,
supra, 2011 WL 1742748 at *1 n.11; see also Letter Brief of
Johnathan Smith, counsel to the plaintiffs, dated Mar. 29, 2011,
at 7.
23

–- access to internal communications is unnecessary to advance
the argument that the NJDEP's orders did not constitute appropriate remediation.").

Although the information in the withheld

documents may be relevant under the Federal Rules of Evidence,
the plaintiffs have not shown why these documents are critical or
necessary to their case.
Although the burden of persuasion continues to rest
with the party seeking to prevent disclosure, and the allegations
at issue in this litigation are very serious, after considering
the nature of these documents, the City's proffered reasons for
withholding them, the lack of allegations which would bring the
deliberations directly in issue and the lack of a sufficiently
articulated need for these documents, I find that, on balance,
the plaintiffs' need does not outweigh the "public interest in
nondisclosure."12
Because plaintiffs have not demonstrated an adequate
basis to pierce the deliberative process privilege, I need not
address the validity of the City's assertion of the attorney-

12

Although the Court in MacNamara v. City of N.Y., 249
F.R.D. at 83, suggests that protective orders can be useful to
minimize the risk of chilling internal candor, I find that,
considering the overall balance of interests in this case,
ordering disclosure of these documents subject to a protective
order would not adequately protect the interests that underlie
the deliberative process privilege.
24

client privilege, as to these documents.

Five Borough Bicycle

Club v. City of N.Y., supra, 2008 WL 4302696 at *2.

Accordingly,

the plaintiffs' motion to compel the following documents, is
denied:

1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 18, 20, 22,

27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42,
43, 44, 45, 47, 48, 49, 52, 56, 57, 58, 59, 63, 64, 65, 66, 67,
70, 71, 72, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87,
88, 89, 90, 91, 92, 93, 94, 95, 106, 107, 108, 109, 110, 111,
112, 113, 114, 115, 116, 117, 118, 119, 120, and 121.

B.

Attorney-Client
Privilege

Still in dispute are thirty-six documents, with respect
to which either the City asserts only the attorney-client privilege, or the City asserts both privileges but has failed to meet
its burden and waived, the deliberative process privilege.13

1.

Applicable
Legal Principles

The elements of the attorney-client privilege are well
settled:

13

These are Documents 2, 15, 16, 17, 19, 21, 23, 24, 25,
26, 46, 50, 51, 53, 54, 55, 60, 61, 62, 68, 69, 73, 74, 97, 98,
99, 100, 101, 102, 103, 104, 105, 122, 123, 124, and 125 on
Exhibit J to the Vickers Declaration.
25

"The [attorney-client] privilege applies only if (1)
the asserted holder of the privilege is or sought to
become a client; (2) the person to whom communication
was made (a) is a member of the bar of a court, or his
subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication
relates to a fact of which the attorney was informed
(a) by his client (b) without the presence of strangers
(c) for the purpose of securing primarily either (i) an
opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the
purpose of committing a crime or tort; and (4) the
privilege has been (a) claimed and (b) not waived by
the client."
Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160
F.R.D. 437, 441 (S.D.N.Y. 1995) (Francis, M.J.), quoting United
States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358–59 (D.
Mass. 1950); see United States v. Davis, 131 F.R.D. 391, 398
(S.D.N.Y. 1990) (Conboy, D.J.).

The privilege "exists to protect

not only the giving of professional advice to those who can act
on it, but also the giving of information to the lawyer to enable
him to give sound and informed advice."
States, 449 U.S. 383, 390 (1981).

Upjohn Co. v. United

Therefore, "[i]t is now [also]

well established that the privilege attaches not only to communications by the client to the attorney, but also to advice rendered by the attorney to the client, at least to the extent that
such advice may reflect confidential information conveyed by the
client."

Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A.,

supra, 160 F.R.D. at 441–42; see also O'Brien v. Board of Educ.,

26

86 F.R.D. 548, 549 (S.D.N.Y. 1980) (Leval, then D.J., now Cir.
J.); SCM Corp. v. Xerox Corp., 70 F.R.D. 508, 520–22 (D. Conn.
1976).
"'[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, supra, 811 F.2d at 144, quoting In re
Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224 (2d
Cir. 1984).

Thus, the party seeking to invoke the privilege must

establish all elements of the privilege.

Bowne of NYC, Inc. v.

AmBase Corp., 150 F.R.D. 465, 470 (S.D.N.Y. 1993) (Dolinger,
M.J.) (collecting cases).

2.

Application

With respect to ten of the remaining documents,14 I
find that the City has met its burden in providing a description
sufficient to demonstrate either the giving of legal advice, or
the creation of a document which most likely contains client
confidences disclosed in connection with a request for legal
advice.

As to each of these documents, the City has identified

the author and recipient, and has provided a description of the

14

These are Documents 2, 15, 19, 24, 25, 46, 50, 55, 60,
and 105.
27

document which either includes a legal term of art, such as
"administrative stops," or some other language suggesting the
document relates to legal advice.15

Accordingly, I find the City

has sustained its burden as to Documents 2, 15, 19, 24, 25, 46,
50, 55, 60, and 105 and the plaintiffs motion to compel, as to
these documents, is denied.

See MacNamara v. City of N.Y.,

supra, 2007 WL 755401 at *7.

15

The plaintiffs argue that the City's revised privilege
log does not indicate a communication between a client and an
attorney, but rather a communication between attorneys at the
NYPD Legal Bureau and that these documents are, therefore, not
protected by the attorney-client privilege (see Memo. in Support
at 12-15, citing Jackson v. City of N.Y., 05 Civ. 721 (RWS)(MHD),
2006 WL 2789990 (S.D.N.Y. Sept. 27, 2006) (Dolinger, M.J.)).
However, with respect to government lawyers, it is not uncommon
for attorneys to participate in the provision of legal advice in
dual capacities –- both giving legal advice to agency employees
and requesting legal advice from in-house or outside counsel.
See In re the County of Erie, 473 F.3d 413, 421 (2d Cir. 2007).
Here, because it is the NYPD as an entity which is the client and
the holder of the privilege, see United States v. Int'l Bhd. Of
Teamsters, 119 F.3d 210, 214-15 (2d Cir. 1997), it is likely that
certain members of the NYPD Legal Bureau, such as Deborah Zoland,
Assistant Deputy Commissioner for Legal Matters, were essentially
functioning as the requester of legal advice. The fact that Ms.
Zoland or others may have played the role as the requester of
legal advice on behalf of the NYPD is especially likely
considering the delegation of all matters related to the
revisions of P.G. 212-60 to S. Andrew Schaffer, head of the NYPD
legal bureau and Ms. Zoland's supervisor. Additionally,
documents created by attorneys which contain client confidences
obtained in the course of rendering legal advice, even if not a
communication between attorney and client, are properly
privileged. ECDC Envtl., L.C. v. N.Y. Marine Gen. Ins. Co., 96
Civ. 6033 (BSJ)(HBP), 1998 WL 614478 at *10-*11 (S.D.N.Y. June 4,
1998) (Pitman, M.J.).
28

As to the remaining twenty-six documents,16 I find the
description of each document is insufficient to sustain an
assertion of privilege.

Some documents describe the subject

matter as "Memo re: Vertical Patrol Stops in NYCHA Owned Buildings (s/Handwritten Notations)," or "Handwritten Notes Regarding
Vertical Patrols" with no indication that legal advice was
requested or given.

Other documents in this category are insuf-

ficiently described because the log does not identify the author
and intended or actual recipients—required information under
Local Civil Rule 26.2.

Still other documents indicate "revi-

sions" to "Lesson: Policing Housing Developments Including
Conducting Interior Vertical Patrols," without indicating who
created the underlying document or the nature of the revisions.17
The City's descriptions simply do not suggest that an attorney's
legal skills were involved in the preparation of these documents.
An attorney and client can have many communications which are not
privileged, for example, correspondence advising of the date and
time of meetings, correspondence transmitting documents, memo-

16

These are Documents 16, 17, 21, 23, 26, 51, 53, 54, 61,
62, 68, 69, 73, 74, 97, 98, 99, 100, 101, 102, 103, 104, 122,
123, 124, 125.
17

Although I conclude that even non-legal revisions to a
document which itself was privileged, would be privileged, there
is no information provided as to the nature of the underlying
"Lesson" document.
29

randa containing purely factual material, and non-substantive
edits and revisions to a draft document.

Because the proponent

of the privilege bears the burden of proof, where it is not clear
that a document involves a legal communication and a client
confidence, production must be ordered.
Given the insufficient information provided in the
revised privilege log, and Judge Scheindlin's strict instructions
in her May 5 Order, I find that the City has failed to meet its
burden in establishing the attorney-client privilege with respect
to Documents 16, 17, 21, 23, 26, 51, 53, 54, 61, 62, 68, 69, 73,
74, 97, 98, 99, 100, 101, 102, 103, 104, 122, 123, 124, and 125,
and that these documents should be produced.

See United States

v. Constr. Prods. Research, Inc., supra, 73 F.3d at 473-74;
Safeco Ins. Co. of Am. v. M.E.S., Inc., supra, 2001 WL 6102014
("Focusing on the descriptive portion on the log and ignoring the
conclusory labels[, the facts provided in the privilege log] do
not establish the elements of a claim of attorney-client privilege (e.g., that the email contains legal advice or was prepared
to elicit legal advice from Sgarlata). . . ."); Resolution Trust
Corp. v. Diamond, supra, 773 F. Supp. at 601 ("The court has
concluded that the remaining documents . . . are not covered by
the attorney-client privilege [as the] RTC has not made a sufficient showing that they consist of or contain privileged attor30

ney-client communications.")

i

see also In re McRay, Richardson,

Santana, Wise, and Salaam Litig., 03 Civ. 9685 (DAB) (RLE) , 2011
WL 5880994 at *7

(S.D.N.Y. Nov. 22, 2011)

(Ellis, M.J.)

(finding

attorneys "typographical edits" and "handwritten notes recommend­
ing the inclusion of certain facts or the exclusion of others"
not privileged) .

IV.

Conclusion

Plaintiffs' motion to compel is granted to the extent
that it seeks an Order directing the City to produce Documents
16, 17, 21, 23, 26, 51, 53, 54, 61, 62, 68, 69, 73, 74, 97, 98,
99, 100{ 101, 102, 103, 104, 122, 123, 124, and 125.

In all

other respects, plaintiffs' motion to compel is denied.

Dated: New York, New York
February 27, 2012
SO ORDERED

HENRY PITMAN
United States Magistrate Judge

31

Copies transmitted to:
Johnathan J. Smith,
NAACP Legal Defense
Education FUND,
16th Floor
99 Hudson Street
New York, New York

Esq.
&
Inc.

10013

Katharine E.G. Booker, Esq.
Paul, Weiss, Rifkind, Wharton
& Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
Nancy Rosenbloom, Esq.
The Legal Aid Society of
New York
199 Water Street
New York, New York 10038
Tonya Jenerette, Esq.
Senior Counsel
Special Federal
tigation Division
Office of the Corporation Counsel
City of New York
100 Church Street
New York, New York 10007
Steven J. Rappaport, Esq.
New York City Housing Authority
9th Floor
250 Broadway
New York, New York 10007

32