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

Filing 171

OPINION AND ORDER # 101867 : The City's and the plaintiffs' motions for reconsideration are denied in their entirety. (Signed by Magistrate Judge Henry B. Pitman on 6/4/2012) Copies Transmitted(js) Modified on 6/5/2012 (ft).

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

In an Opinion and Order dated February 27, 2012 ("Feb.
27, 2012 Order")(Docket Item 153), familiarity with which is
assumed, I granted in part, and denied in part, plaintiffs'
motion seeking to compel the production of certain documents that
defendant City of New York (the "City") was withholding on the
basis of the attorney-client and the deliberative-process privileges (Docket Item 119).

Davis v. City of N.Y., 10 Civ. 699

(SAS)(HBP), 2012 WL 612794 (S.D.N.Y. Feb. 27, 2012).
The City requests reconsideration of certain portions
of the Feb. 27, 2012 Order; plaintiffs oppose the City's request
for reconsideration and seek reconsideration of a different
portion of the Feb. 27, 2012 Order.

For the reasons set forth

below, both requests for reconsideration are denied in all
respects.

II.

Facts

A.

Background

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 the allegedly unlawful trespass enforcement policies and practices of the defendants, the City and the
New York City Housing Authority ("NYCHA"), working together with
the New York City Police Department ("NYPD").1
At the time this suit was commenced, the relevant NYPD
policy was reflected in Section 212-60 of the NYPD Patrol Guide
("P.G. 212-60").

Because of complaints and litigation, S. Andrew

Schaffer, the NYPD Deputy Commission for Legal Matters undertook
the task of revising P.G. 212-60.

1

After working together with

Plaintiffs' 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).
2

high-ranking NYPD personnel and attorneys from the New York City
Corporation Counsel's office, P.G. 212-60 was replaced by Interim
Order number 23 ("I.O. 23").
Two categories of documents concerning the revisions to
P.G. 212-60 were at issue in the Feb. 27, 2012 Order:

"(1) legal

memoranda and NYPD 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).
The Honorable Shira A. Scheindlin, United States
District Judge, in an Order, dated May 5, 2011 ("May 5, 2011
Order") found several deficiencies in the City's privilege logs
and ordered the City to submit revised logs.

Davis v. City of

N.Y., 10 Civ. 699 (SAS), 2011 WL 1742748 (S.D.N.Y. May 5, 2011).
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

3

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

On October 21, 2011, plaintiffs moved to

compel the production of 125 documents which the City asserted
were protected by the deliberative-process privilege, the
attorney-client 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)).2
The City asserted the deliberative-process privilege as
to 107 documents; the plaintiffs challenged the assertion of this
privilege as to 19 of these documents, on the ground that the
City had not established, through the information provided in the
revised privilege log, or through other evidence, the applicability of the privilege.

The plaintiffs also argued that all 107

documents withheld on the basis of the deliberative-process

2

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.
4

privilege should be produced because the plaintiffs' need for the
documents, outweighed the publics' interest in nondisclosure.
The City also asserted the attorney-client privilege as
to all 125 documents; the plaintiffs challenged 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 did not suggest
a communication to a client containing legal advice.
In my Feb. 27, 2012 Order, I first found that the
descriptions in the privilege log with respect to 18 of the 19
documents3 withheld on the basis of the deliberative-process
privilege, and challenged by plaintiffs, were insufficient to
show the applicability of the privilege.
supra, 2012 WL 612794 at *6.

Davis v. City of N.Y.,

I also held that the City had

waived the deliberative-process privilege as to these documents
by its failure to comply with Judge Scheindlin's May 5, 2011
Order directing it to revise the privilege log to address a
deficiency in the descriptions.
2012 WL 612794 at *6.

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

I further found the dispute to be moot

3

These are Documents 2, 15, 16, 17, 19, 21, 24, 25, 46, 50,
51, 54, 55, 60, 68, 73, 74, and 105 on Exhibit J to the Vickers
Decl.
5

with respect to the remaining putative deliberative-process
documents, because the plaintiffs did not also challenge the
City's assertion of the attorney-client privilege with respect to
these documents.4

Davis v. City of N.Y., supra, 2012 WL 612794

at *6.
Next, I held that plaintiffs had not shown a sufficient
basis to pierce the deliberative-process privilege with respect
to the 88 documents5 which were otherwise unchallenged:
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."
Davis v. City of N.Y., supra, 2012 WL 612794 at *10 (footnote
omitted).

4

Document 96.

5

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.
6

Consequently, I also found plaintiffs' challenge to the
City's assertion of the attorney-client privilege to be moot as
to these documents.
Still in dispute were thirty-six documents,6 with
respect to which the City either asserted only the attorneyclient privilege, or the City asserted both privileges but had
failed to sustain its assertion of the deliberative-process
privilege.
With respect to ten of the remaining documents,7 "I
f[ound] that the City ha[d] met its burden [of] 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."

Davis v. City of N.Y., supra, 2012 WL 612794 at

*10 (footnotes omitted).
I also added the following in a footnote:
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
6

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.
7

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

105.
7

attorney-client privilege (see Memo. in Support at 1215, 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.).
Davis v. City of N.Y., supra, 2012 WL 612794 at *11 n.15.
With respect to the remaining 26 documents:8
I f[ound] the description of each document [to be]
insufficient to sustain an assertion of privilege. . .
. The City's descriptions simply do not suggest that
an attorney's legal skills were involved in the preparation of these documents. . . . Because the proponent
of the privilege bears the burden of proof, where it is

8

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.
8

not clear that a document involves a legal communication and a client confidence, production must be ordered.
Davis v. City of N.Y., supra, 2012 WL 612794 at *11 (footnote
omitted).
In sum, I directed 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, and denied
plaintiffs' motion in all other respects.
I also declined to review the documents in camera
because (a) Judge Scheindlin Ordered the City to supplement its
privilege log and did not give the City the option of supplementing its log or submitting the documents for in camera review, (b)
"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," and (c) in camera review is conducted only in exceptional circumstances.

Davis v. City of N.Y., supra, 2012 WL

612794 at *6 n.9.

9

B.

The Present
Discovery Dispute

The City seeks reconsideration "only to the extent of
requesting an in camera review of four legal memoranda . . . .
Documents 17, 21, 51 and 54" (Letter Brief of Judson Vickers,
counsel to the City, dated March 2, 2012 ("City's Letter Brief"),
at 1 and Exhibit A annexed thereto).
Plaintiffs' oppose the City's request for reconsideration and also cross-move for reconsideration of my Feb. 27, 2012
Order, to the extent I denied plaintiffs' motion to compel ten
documents -- Documents 2, 15, 19, 24, 25, 46, 50, 55, 60, and 105
(Letter Brief of Johnathan J. Smith, counsel to the plaintiffs,
dated Mar. 12, 2012 (Plaintiffs' Letter Brief) at 3 and Appendix
A annexed thereto).

III.

Analysis

A.

Legal Principles
Relating to
Motions for Reconsideration

Motions for reconsideration are appropriate only in
very limited circumstances.

As explained by the Honorable

Michael B. Mukasey, United States District Judge, now retired, in

10

McMahan & Co. v. Donaldson, Lufkin & Jenrette Sec. Corp., 727 F.
Supp. 833, 833 (S.D.N.Y. 1989):
Motions for reargument "are granted when new facts
come to light or when it appears that controlling
precedents were overlooked." Weissman v. Fruchtman,
658 F. Supp. 547 (S.D.N.Y. 1987). The proponent of
such a motion is not supposed to treat the court's
initial decision as the opening of a dialogue in which
that party may then use [Local Civil Rule 6.3] to
advance new facts and theories in response to the
court's rulings. The purpose of the rule is "to ensure
the finality of decisions and to prevent the practice
of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Lewis v. New York Telephone, No. 83 Civ. 7129,
slip op. at 2, 1986 WL 1441 (S.D.N.Y. 1986) cited in
Carolco Pictures Inc. v. Sirota, 700 F. Supp. 169
(S.D.N.Y. 1988).
See also Mahmud v. Kaufmann, 496 F. Supp. 2d 266, 269-70
(S.D.N.Y. 2007) (Conner, D.J.).

"A movant for reconsideration

bears the heavy burden of demonstrating that there has been an
intervening change of controlling law, that new evidence has
become available, or that there is a need to correct a clear
error or prevent manifest injustice."

Quinn v. Altria Grp.,

Inc., 07 Civ. 8783 (LTS)(RLE), 2008 WL 3518462 at *1 (S.D.N.Y.
Aug. 1, 2008) (Swain, D.J.), citing Virgin Airways v. Nat'l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992).
"[T]o be entitled to reargument under Local [Civil Rule
6.3, a party] must demonstrate that the Court overlooked controlling decisions or factual matters that were put before the Court

11

on the underlying motion."

Am. Alliance Ins. Co. v. Eagle Ins.

Co., 163 F.R.D. 211, 213 (S.D.N.Y. 1995) (Sweet, D.J.), rev'd on
other grounds, 92 F.3d 57 (2d Cir. 1996), citing Ameritrust Co.
Nat'l Ass'n v. Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993) (Sweet,
D.J.); Fulani v. Brady, 149 F.R.D. 501, 503 (S.D.N.Y. 1993)
(Sweet, D.J.), aff'd sub nom., Fulani v. Bentsen, 35 F.3d 49 (2d
Cir. 1994); E. Coast Novelty Co. v. City of N.Y., 141 F.R.D. 245,
245 (S.D.N.Y. 1992) (Sweet, D.J.); B.N.E., Swedbank, S.A. v.
Banker, 791 F. Supp. 1002, 1008 (S.D.N.Y. 1992) (Sweet, D.J.);
Novak v. Nat'l Broad. Co., 760 F. Supp. 47, 48 (S.D.N.Y. 1991)
(Sweet, D.J.); Ashley Meadows Farm, Inc. v. Am. Horse Shows
Ass'n, 624 F. Supp. 856, 857 (S.D.N.Y. 1985) (Sweet, D.J.).
Thus, "a party in its motion for reargument 'may not advance new
facts, issues or arguments not previously presented to the
court.'"

In re Integrated Res. Real Estate Ltd. P'ships Sec.

Litig., 850 F. Supp. 1105, 1151 (S.D.N.Y. 1993) (Sweet, D.J.),
quoting Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., 86
Civ. 6447 (JMC), 1989 WL 162315 at *4 (S.D.N.Y. Aug. 4, 1989)
(Cannella, D.J.), rev'd on other grounds, 967 F.2d 742 (2d Cir.
1992); accord Caribbean Trading & Fid. Corp. v. Nigerian Nat'l
Petroleum Corp., 948 F.2d 111, 115 (2d Cir. 1991); see also
Woodard v. Hardenfelder, 845 F. Supp. 960, 966 (E.D.N.Y. 1994).
"These limitations serve to ensure finality and to prevent losing
12

parties from using motions for reconsideration as a vehicle by
which they may then plug the gaps of a lost motion with additional matters."

In re City of N.Y., as Owner & Operator of M/V

Andrew J. Barberi, CV-03-6049 (ERK)(VVP), 2008 WL 1734236 at *1
(E.D.N.Y. Apr. 10, 2008), citing Zoll v. Jordache Enter. Inc., 01
Civ. 1339 (CSH), 2003 WL 1964054 at *2 (S.D.N.Y. Apr. 24, 2003)
(Haight, D.J.); Cohn v. Metropolitan Life Ins., Co., 07 Civ. 0928
(HB), 2007 WL 2710393 at *1 (S.D.N.Y. Sept. 7, 2007) (Baer,
D.J.); In re Rezulin Prods. Liab. Litig., 224 F.R.D. 346, 349
(S.D.N.Y. 2004) (Kaplan, D.J.); Horsehead Res. Dev. Co., Inc. v.
B.U.S. Envtl. Servs., Inc ., 928 F. Supp. 287, 289 (S.D.N.Y.
1996) (Scheindlin, D.J.).

B.

Application

1.

The City's Motion
For Reconsideration

The City asserts two purported bases for reconsideration.

Neither are meritorious.
First, the City argues that reconsideration of Docu-

ments 17, 21, 51, and 54, by way of in camera review, is appropriate because plaintiffs did not challenge these documents on
the ground that the privilege log is inadequate, merely on the
ground that the documents contain "communications . . . between
13

lawyers, with no indication of communicating legal advice to
client" (City's Letter Brief 2).
The City mischaracterizes the arguments plaintiffs
asserted with respect to these four documents.

In their motion

to compel, plaintiffs made two arguments challenging the assertion of the attorney-client privilege.

First, the plaintiffs

argued that the "Court-Ordered privilege logs do not provide
sufficient information about the authors or recipients of the
challenge documents to support [the assertion of the] attorneyclient privilege" (Memorandum of Law in Support of Plaintiffs'
Motion to Compel Production of Documents, dated Oct. 21, 2011
("Memo. in Support")(Docket Item 120), at 10).

Second, plain-

tiffs argued that the "attorney-client privilege does not apply"
to these documents because they appear to be "communications
between lawyers that do not indicate the provision of legal
advice to a client" (Memo. in Support 12).

Reading plaintiffs'

Memo. in Support together with the charts of challenged documents
plaintiffs attached 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."), it is clear
that plaintiffs challenged these four documents only on the
latter ground (Exhibit F to Lee Decl.).

However, notwithstanding

the title of Exhibit F to the Lee Decl. -- "Challenged Entries
14

Asserting Attorney-Client Privilege (Attorney-Attorney Communications Not Conveyed To A Client)" -- plaintiffs' latter argument
had two distinct parts.

First, plaintiffs argued that these

documents cannot be protected by the attorney-client privilege
because they appear to be communications shared between attorneys
at the NYPD Legal Bureau that were never transmitted to a client
–- a claim I expressly rejected.

See Davis v. City of N.Y.,

supra, 2012 WL 612794 at *11 n.15.

However, the plaintiffs also

argued that these documents should be produced because "in order
for the attorney-client privilege to apply to the Challenged
Documents, the City must demonstrate that the documents constitute requests for, or the provision of, legal advice. . . .

The

Court-Ordered Privilege Logs to not indicate that . . . the
Challenged Documents were a . . . communication where the 'predominant purpose . . . is to render or solicit legal advice'"
(Memo. in Support 14-15, quoting In re County of Erie, 473 F.3d
413, 419 (2d Cir. 2007)).

It was on basis of this aspect of the

plaintiffs' second argument that I directed the City to produce
these documents.

See Davis v. City of N.Y., supra, 2012 WL

612794 at *11 ("The City's descriptions simply to not suggest
that an attorney's legal skills were involved in the preparation
of these documents. . . .

Because the proponent of the privilege

bears the burden of proof, where it is not clear that a document
15

involved a legal communication and a client confidence, production must be ordered.").
The City also argues that reconsideration is warranted
because any omissions from the subject-matter descriptions are
"relatively minor, given the author's status as an attorney in
the office of [NYPD] Legal Affairs, as well as the timing of the
creation of these (and similar) memorandum" with "[s]uch omissions includ[ing] Defendant's failure to indicate the memorandum
in question is a memorandum of law, as opposed to a memorandum"
(City's Letter Brief 2).
Here too, the City fails to show that I overlooked
controlling decisions or factual matters that were put before me
on the motion.

In opposition to the plaintiffs' motion to

compel, the City argued that:
[P]laintiffs argue that the documents listed in
Lee Dec. Exhibit F are not protected by the attorneyclient privilege because . . . (2) they constitute
general legal analysis rather than specific legal
advice. Plaintiffs Brief at 14-15.
Plaintiffs are wrong. As previously noted, the
vast majority of these documents are classic legal
memoranda addressing a variety of legal issues relating
to NYCHA vertical patrols, PG 212-60 revisions, trespassing on NYCHA property and NYCHA rulemaking. As
such, they should be afforded the same attorney-client
privilege protections such documents would possess in
the context of litigation involving non-governmental
parties

16

(Defendant City of New York's Memorandum of Law in Opposition to
Plaintiffs' Motion to Compel Production of Documents, dated Nov.
9, 2011 ("Memo. in Opp.")(Docket Item 127), at 12 (emphasis
added)(footnote and citation omitted)).
After considering the City's argument, reviewing the
privilege log entries, and bearing in mind Judge Scheindlin's May
5, 2011 Order in which she gave the City a second opportunity to
submit a privilege log with descriptions sufficient to support
the asserted privileges, I found some entries to be sufficient
and some to be insufficient.

The City appears to be requesting

that I reevaluate that decision without pointing to facts or law
which I have overlooked.9

Accordingly, the City's motion for

reconsideration is denied.10
9

The City also fails to articulate any basis for
reconsidering my holding declining to review the challenged
documents in camera.
10

The City, implicitly acknowledging the weakness with the
grounds on which it seeks reconsideration, cites National Council
of La Raza v. Department of Justice, 03 Civ. 2559 (LAK), 2004 WL
2314455 (S.D.N.Y. Oct. 14, 2004) as "persuasive legal authority"
in support of its request for reconsideration. In National
Council, the Honorable Lewis A. Kaplan, United States District
Judge, reconsidered an order directing a party to produce
purportedly privileged documents after in camera review, despite
a finding that "strict application of Rule 6.3 would require
denial of the motion for reconsideration," because "the
deliberative process privilege, and FOIA Exemption 5, serve
important public interests." 2004 WL 2314455 at *1. Considering
the multiple opportunities the City had to update its privilege
log or supplement its assertion of privilege with affidavits or
(continued...)
17

2.

Plaintiffs' Motion
For Reconsideration

The plaintiffs move for reconsideration of my Feb. 27,
2012 Order, to the extent I declined to compel the production of
ten documents, on the basis that I erred in my legal analysis and
conclusions.11
Plaintiffs argue that my finding 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," Davis v. City of
N.Y., supra, 2012 WL 612794 at *11, was error because "there is
no indication that a client requested and/or received the information" (Plaintiffs' Letter Brief 4).

Plaintiffs also contend

that my finding that the attorney-client privilege applies even
though the documents were transmitted between attorneys working
in the NYPD Legal Bureau was error (Plaintiffs' Letter Brief 4).

10

(...continued)
other evidence, and considering the more narrow interests
involved in disputes over the attorney-client privilege, rather
than the deliberative-process privilege and FOIA Exemption 5, I
decline to grant the City the same leeway Judge Kaplan granted
the defendant in National Council.
11

These are Documents 2, 15, 19, 24, 25, 46, 50, 55, 60,
and 105.
18

They argue that my decision warrants reconsideration because
there is no case law on point which supports the proposition that
communications between government attorneys within one agency's
legal department can be protected by the attorney-client privilege and because the descriptions in the City's privilege log do
not demonstrate that NYPD Legal Bureau attorneys were functioning
in dual capacities with some attorneys functioning as representatives of the NYPD entity, while others, functioning as legal
advisors to the NYPD (Plaintiffs' Letter Brief 4-5).
Plaintiffs do not cite any controlling facts or legal
authorities that were called to my attention in connection with
the underlying motion that I overlooked.

Rather, the plaintiffs'

motion treats my Feb. 27, 2012 Order as if it were an invitation
to further discussion and merely attempts to debate further the
issues resolved by that Order.

Thus, the plaintiffs' motion for

reconsideration also fails.

19

IV.

Conclusion

The City's and the plaintiffs' motions for reconsidera­
tion are denied in their entirety.

Dated: New York, New York
June 4, 2012
SO ORDERED

IL..~P~

HENRY PlMAN
United States Magistrate Judge

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

20

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 t New York 10007

21