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

Filing 172

MEMORANDUM OPINION AND ORDER: Because the Reports should have been produced long ago, because the City has been less than forthright with the Court about the content of these Reports and the role of ICOs, and because a deposition of an ICO is likely to lead to the discovery of admissible evidence, plaintiffs' request is granted. Defendants shall make available for deposition an ICO from one of the Police Service Areas that arrested one of the named plaintiffs; the deposition shall be limite d to sevenhours, not the one hour that the City suggests; and, given expert report deadlines it shall take place by June 22. The deposition shall not be limited to the topics in the Reports all of the ICOs' duties are appropriate subjects of investigation. The deadlines for the production of expert reports and the submission of summary judgment briefs will not be extended as a result of this Order. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 6/13/2012) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------)(
KELTON DAVIS, et ai., individually and on
behalf of a class of all others similarly
situated,
MEMORANDUM

OPINION AND ORDER

Plaintiffs,

10 Civ. 0699 (SAS)

- againstTHE CITY OF NEW YORK and NEW
YORK CITY HOUSING AUTHORITY,
Defendants.

-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
After the close of fact discovery and as they are preparing their
summary judgment briefs, the parties have presented the Court with the latest in a
long line of discovery disputes.
On May 11,2012, plaintiffs asked the Court to order production of
the NYPD Housing Bureau's Reports of Self-Initiated Cases ("Reports"), which
are summaries of investigations conducted by Integrity Control Officers CICOs")
into police misconduct. 1 They argued that these reports were crucial to determine
"the scope of the City's supervision and disciplining of Housing Bureau officers

See 5/11/12 Letter from Johnathan Smith (Plaintiffs' Counsel) to
Court ("May 11 Letter").

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conducting unlawful stops and arrests."2 The City of New York ("City")
responded by saying that "such documents do not exist ... ICOs do not have
jurisdiction over review of trespass arrests; complaints regarding false arrests,
abuse of authority, discourtesy and offensive language are handled by [the
Civilian Complaint Review Board] and complaints regarding corruption are
handled by [the Internal Affairs Bureau]."3 The City cited the testimony of Chief
Delatorre to support its argument that the Reports "concern[] ICO oversight of
police officer conduct that has nothing to do with the claims asserted in this
lawsuit.,,4 It went on to explain that "when asked whether ICO self-initiated cases
were ever used to determine whether officers were conducting proper arrests Chief
Delatorre testified that he 'can't tell you that we have looked at that specifically. ",5
The City therefore objected to the production of the reports because it would be
"speculative and not reasonably calculated to lead to the discovery of admissible
evidence.,,6

2

Id. at 1.

3
5/14112 Letter from Brenda Cooke (Counsel to City) to Court ("May
14 Letter") at 1.
4

Id. at 2.

5

Id.

6

Id.
2

In order to resolve the dispute, I examined two of the Reports in
camera. I marked the portions of Reports that related to the claims in this lawsuit
and ordered the City to tum them over to plaintiffs, along with similar material
from the other Reports. 7
Previously, on December 21, 2011, I orally denied plaintiffs' request
to depose an lCO because I determined that other depositions ofNYPD officials
had already provided plaintiffs with sufficient information about the lCOs'
responsibilities and that "it is not entirely clear that the lCOs' functions ... have to
do with this lawsuit .... [T]hese people don't investigate unlawful stops or arrests
because that goes to lAB and CCRB."g That decision was based on the City's
statement that "most of the lCOs' functions have nothing to do with the issues in
this lawsuit."9
Plaintiffs now seek reconsideration of my decision; a deposition of
an lCO is merited, they argue, because "the newly-produced information in the
redacted [Reports] contradicts the City's representations to the Court, and
confirms Plaintiffs' understanding that lCOs play an important role in monitoring,

7

See 5/24112 Email from Court to Parties.

g

12/21111 Conference Tr. at 9:14-17.

9

12119/11 Letter from Tonya Je~erette (Counsel to City) to Court.
3

investigating, and/or identifying possible problems with officers' enforcement
activity."IO The City again objects, arguing, in sum, that "[a]mple additional
discovery relevant to ICOs' actions regarding claims in this lawsuit and the
supervision and discipline of Housing Bureau officers regarding the same has been
provided to plaintiffs."!!
It is indeed true that plaintiffs have obtained significant documentary

and testimonial evidence regarding the ICOs. Given that fact discovery was
scheduled to end long ago, a case can be made that an additional deposition would
be "unreasonably cumulative or duplicative" and that "the burden or expense of the
proposed discovery outweighs its likely benefit."!2 But denying plaintiffs the
deposition would reward the City when it in fact deserves admonishment.
According to the City, the Reports it produced after my in camera
review contain information about 71 investigations, over a five year period,
addressing complaints filed with the CCRB, the completion ofUF-250 forms
describing stops and frisks, the execution of vertical patrols, and officers' failure

10

6/8/12 Letter from Jin Hee Lee (Plaintiffs' Counsel) to Court ("June 8

Letter") at 1.
11

6/11/12 Letter from Brenda Cooke (Counsel to City) to Court (June

11 Letter") at 2.
12

Fed. R. Civ. P. 26(b )(2)(C).

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to comply with enforcement activity performance standards. 13 This information is
not merely "discoverable" - i.e., "reasonably calculated to lead to the discovery of
admissible evidence" - but in fact goes to the very heart of plaintiffs' allegations.
These Reports should have been produced (in redacted fonn to
include only relevant infonnation) at the beginning of discovery in 2010. Had
they been produced, plaintiffs could have sought an ICO deposition long ago and,
if faced with the City's resistence, could have shown the Reports to the Court.
Instead, I denied plaintiffs' request for the deposition in part because neither they
nor I had complete infonnation about the scope of the lCOs' role. 14
The City's representations to the Court in its May 14 letter were false.
It is not true that Reports containing infonnation regarding the supervision and
discipline of officers for unlawful stops and arrests "do not exist" or that the lCO
oversight relates only to "conduct that has nothing to do with the claims asserted
in this lawsuit.,,15 The selective and blatantly misleading quotation from Chief

13

See June 11 Letter at 1.

14
The City's December 19 statement that "most of the lCOs' functions
have nothing to do with the issues in this lawsuit" was technically correct. But it
is now clear that a not-insignificant portion of the reos' functions are relevant to
plaintiffs' allegations.
15

May 14 Letter at 1-2.

5

Delatorre's deposition, documented in full on page two of plaintiffs , June 8 letter,
is particularly flagrant: in contrast to the City's representation, Chief Delatorre
stated that, "for sure," the ICOs would open an investigation "if there is an
indication that the officer didn't understand the laws of arrest or anything along
those lines."16
Because the Reports should have been produced long ago, because
the City has been less than forthright with the Court about the content of these
Reports and the role oflCOs, and because a deposition of an ICO is likely to lead
to the discovery of admissible evidence, plaintiffs' request is granted. Defendants
shall make available for deposition an ICO from one of the Police Service Areas
that arrested one of the named plaintiffs; the deposition shall be limited to seven
hours, not the one hour that the City suggests; and, given expert report deadlines,
it shall take place by June 22. The deposition shall not be limited to the topics in
the Reports

all of the ICOs' duties are appropriate subjects of investigation. 17

The deadlines for the production of expert reports and the submission of summary

16

Deposition of01iefDelatorre at 479.

Additionally, the City is ordered to provide plaintiffs with the total
number of cases listed in each Report. Plaintiffs convincingly explain why thi s
"denominator" information is relevant. If it is easier to do so, defendants may
simply inform plaintiffs of these numbers without providing ne.vly-redacted
versions of the Reports.
17

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judgment briefs will not be extended as a result of this Order.

Dated:

New York, New York
June 13,2012

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Appearances
For Plaintiffs:
Johnathan Smith, Esq.

Jin Hee Lee, Esq.

NAACP Legal Defense & Educational Fund, Inc.

99 Hudson Street, 16th Floor

New York, New York 10013

[phone]
Nancy Rosenbloom, Esq.
Legal Aid Society of New York
199 Water Street
New York, New York 10038
[phone]
Matthew Moses, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
[phone]
For Defendant City of New York:

For Defendant NYCHA:

Brenda Cooke
Judson Vickers
Pernell Telfort
George Soterakis
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007
[phone]

Steven Jay Rappaport, Esq.
New York City Housing Authority
250 Broadway, 9th Floor
New York, New York 10007
[phone]

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