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

Filing 67

OPINION AND ORDER, that in accordance with the Court's instructions set forth in this Order, the City is ordered to review its assertions of privilege; revise and resubmit its privilege logs by May 20, 2011; and release the requested documents that are not covered by the deliberative process privilege, or any other privilege, in view of the Court's rulings, whether in their entirety or in redacted form as appropriate. (Signed by Judge Shira A. Scheindlin on 5/4/11) (pl)

l1NITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------){
KELTON DAVIS, WILLIAM TURNER,
ALTAGRACIA HERNANDEZ, EDWIN
LARREGUI, ROMAN JACKSON,
KRISTIN JOHNSON, ELEANOR BRITT,
ANTHONY ANDERSON, LASHAUN
SMITH, SHAWNE JONES, HECTOR
SUAREZ, ADAM COOPER, ANDREW
WASHINGTON, P.L. BY HIS PARENT
LISA PIGGOTT, DAVID WILSON, AND
GENEVA WILSON, individually and on
behalf of a class of all others similarly
situated,

\

OPINION AND ORDER
10 Civ. 0699 (SAS)

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

-------------------------------------------------------){
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Plaintiffs bring suit, on bthalf of themselves and a class of similarly

situated individuals, against the City of New York (the "City") and the New York
City Housing Authority ("NYCHA") (collectively, "Defendants"), asserting a
continuing violation of their rights pursuant to 42 U.S.c. § 1983,42 U.S.c. § 1981,
the Fourth and Fourteenth Amendments to the United States Constitution, Title VI
1

of the Civil Rights Act of 1964,1 Title VIII of the Civil Rights Act of 1968 (''Fair
Housing Act")/ the United States Housing Act,3 the Constitution and laws of the
State of New York, and the New York City Human Rights Law ("NYCHRL,,).4
Plaintiffs have sought the production of certain documents, which the
City has refused to produce, asserting that those documents are protected by the
deliberative process privilege. For the reasons stated below, the City is ordered to
produce some of the documents, and to submit a more detailed privilege log with
respect to certain other documents.

II.

BACKGROUND
Plaintiffs allege that defendants, "operating through and in

conjunction with the New York City Police Department (''NYPD''), have
implemented and continue to conduct, enforce and sanction an unlawful vertical
patrol and trespass arrest policy which has resulted in a pattern and practice of
illegal stops, seizures, questioning, searches, and false arrests of residents of, and
authorized visitors to, NYCHA residences."s At the time this suit was instituted,
42 U.S.C. § 2000(d).
2

Id. § 3601, et seq.

3

Id. § 1437, et seq.

4

N.Y.C. Admin. Code § 8-101, et seq.

S

Complaint ("Comp!.") ~ 2.

2

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 Bui1dings.,i)
In response to complaints to the Civilian Complaint Review Board
("CCRB") about the legality of stops and arrests in NYCHA buildings and similar
concerns raised by NYCHA representatives and tenant leaders, the NYPD
leadership decided to "provid[e] additional guidance to police officers patrolling
NYCHA properties.,,7 In the fall of2009, 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 amsultation with high-ranking NYPD
personnel and attorneys from the New York City Corporation Counse1. s On July 8,
2010, P.G. 212-60 was replaced by Interim Order number 23 ("1.0. 23").9
Although 1.0.23 contains much of the same information as its predecessor, it

Id. ~ 3. See also 3/15/11 Letter Brief by Tonya J enerette, counsel to
the City of New York ("City Letter") at 1; P.G. 212-60, dated 1/1/00, Ex. B to City
Letter.
6

7
3/15/11 Declaration of S. Andrew Schaffer, NYPD Deputy
Commissioner for Legal Matters ("Schaffer Dec1."), attached to City Letter ~ 4.
8

See id. ,-r,-r 3, 5; City Letter at 1-2.

See Schaffer Dec1. ~~ 3, 8; City Letter at 2; 1.0. 23, dated 6/8/1 0, Ex.
C to City Letter.
9

3

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. ",10
1.0.23 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 LO. 23.,,11 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." 12
The City has withheld four categories of documents, which it asserts

10

Schaeffer Decl.

~

11 (quoting 1.0. 23

~3).

3/29111 Letter Briefby plaintiffs (''PI. Letter") at 7. The City contests
plaintiffs' position, arguing, H[a]s the Interim Order literally did not exist on the
date the complaint was filed, it could not have been the subject of plaintiffs'
claims." City Letter at 6 n.3. However, the City is splitting hairs. Plaintiffs
clearly mean that they seek to challenge defendants' overall vertical patrol policies
and trespass enforcement practices. Plaintiffs' position is that those policies have
been and remain discriminatory, regardless of whether they are manifested in P.O.
212-60, LO. 23, or any other policy document.
11

12

See City Letter at 1.
4

all relate to the revision of P.G. 212-60: '0) legal memoranda and NYPD Legal
Bureau analysis of vertical patrols in NYCHA developments; (2) correspondence
and draft revisions to P[. ]G[.] 212-60; (3) drafts of the training curriculum/training
scenarios concerning revised P[.]G[.] 212-60; (4) and deliberations about
substantiated CCRB complaints concerning the legality of stops and arrests on
NYCHA properties."13 The City claims that these documents are predecisional and
deliberative and as such, their release would "inaccurately reflect the basis for final
agency policy and chill the candor ofNYPD officials in the future.,,14 In support of
its assertions of privilege, the City has submitted a declaration from S. Andrew
Schaffer; two privilege logs, dated February 25,2011 and April 7, 2011; P.G. 212­
60; and 1.0. 23. 15

III.

APPLICABLE LAW
The deliberative process privilege protects from disclosure

13
14

[d. at 3.

Id. at 1. The City's privilege logs also reflect assertions of the

attorney-client and attorney work product privileges. The parties were not asked to
brief whether those privileges have been properly asserted, thus the Court does not
reach that issue. However, in revising its privilege logs in accordance with this
Opinion and Order, the City is also ordered to review its assertions of those two
privileges and ensure that its assertions are proper.

See Schaffer Decl.; 2/25111 City's Privilege Log ("2/25 Log"), Ex. A
to City Letter; 4/7111 City's Privilege Log ("4/7 Log"), attached to City's 4/7111
letter in reply to plaintiffs' opposition (''City Reply"); P.G. 212-60; 1.0. 23.
15

5

"'documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are
fonnulated. ",16 The privilege is intended "'to enhance the quality of agency
decisions, by protecting open and frank discussion among those who make them
within the Government. ",17
In order to qualify for the privilege, a document must be
"predecisional" and "deliberative.,,18 A document is predecisional if it was
'''prepared in order to assist an agency decisionmaker in arriving at his
decision. ",19 The agency claiming privilege "must be able to demonstrate that ...
the document for which ... privilege is claimed related to a specific decision
facing the agency.,,20 A document is deliberative ifit is "'actually ... related to the

National UJuncil ofLa Raza v. Department ofJustice ("NCLR"), 411
F.3d 350,356 (2d Or. 2005) (quoting Tiguev.
Dep't ofJustice, 312 F.3d 70,
76 (2d Cir. 2002)).
16

u.s.

Tigue, 312 F.3d at 76 (quoting Department ofthe Interior v. Klamath
Water Users ProtectiveAss'n, 532 U.S. 1,8-9 (2001)).
17

18

NCLR, 411 F.3d at 356.

Id. at 356 (quoting Grand Cent. P'ship v. Cuomo, 166 F.3d 473, 482
(2d Cir. 1999)). Such materials include "recommendations, draft documents,
proposals, suggestions, and other subjective documents [that] reflect the personal
opinions of the writer rather than the policy of the agency." Grand Cent. P'ship,
166 F.3d at 482.
19

Tigue, 312 F.3d at 80 (citing NLRB v. Sears, Roebuck & Co., 421 U.S.
132,151 n.18 (1975)).
20

6

process by which policies are formulated. ",21 Factors used to determine whether a
document is deliberative include "whether the document (i) formed an essential
link in a specified consultative process, (ii) reflects the personal opinions of the
writer rather than the policy of the agency, and (iii) if released, would inaccurately
reflect or prematurely disclose the views of the agency."22 The privilege does not
extend to "'purely factual' material,,23 or documents later adopted or incorporated
into a final agency opinion?4 "The privilege also does not extend to materials
related to the explanation, interpretation or application of an existing policy, as
opposed to the formulation of a new policy.,,25
The deliberative process privilege is merely a qualified privilege; thus
"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
21

NCLR, 411 F.3d at 356 (quoting Grand Cent. P'ship, 166 F.3d at

482).

Grand Cent. P'ship, 166 F.3d at 482 (quotation marks and citation
omitted). Accord Tigue, 312 F.3d at 80.
22

Grand Cent. P'ship, 166 F.3d at 482 (quoting Hopkins v.
ofHousing & Urban Dev., 929 F.2d 81,85 (2d Cir. 1991)).
23

u.s. Dep't

See NCLR, 411 F.3d at 356 (citing Sears, 421 U.S. at 161); Coastal
States Gas Corp. v. Department ofEnergy, 617 F .2d 854, 866 (D.C. Cir. 1980).
24

Resolution Trust Corp. v. Diamond, 137 F.RD. 634, 641 (S.D.N.Y.
1991 ) (citing Mobil Oil Corp. v. Department ofEnergy, 102 F .R.D. 1, 5 (N.D.N.Y.
1983)).
25

7

to the privileged information.,,26 Factors favoring disclosure include:
(I) 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 ofthe information from alternative sources, (3)
the strength of the [requesting party's] case ... , and (4) the
importance [of disclosure] to the public interest. 27
Factors against disclosure include: (l) threats to public safety, (2) the invasion of
government officials' privacy, (3) the weakening of government programs, and (4)
the chilling of internal candor. 28 "[T]he burden of persuasion rests on the party
seeking to prevent disclosure.,,29 That burden is a heavy one, in view of "the great
weight of the policy in favor of discovery in civil rights actions and the normal
presumption in favor of broad discovery.,,30
"The claim of deliberative-process privilege must be lodged by the
head of the agency after personal consideration of the allegedly privileged
material" or by a "'subordinate with high authority'" pursuant to "guidelines on the

MacNamara v. City ofNew York, 249 F.RD. 70, 79 (S.D.N.Y. 2008)
(quotation marks and citation omitted).
26

27

Id. at 80 (citing King v. Conde, 121 F.R.D. 180, 191-93 (E.D.N.Y.

1988)).
Cf id. (describing similar factors specifically applied to law
enforcement (citing King, 121 F.RD. at 191-93)).
28

29

King, 121 F.RD. at 191.

30

MacNamara, 249 F.RD. at 80.
8

use of the privilege" issued by the head of the agency.3! "The assertion of the
privilege by an attorney is therefore improper."32 "Moreover, the agency claiming
the privilege must provide precise and certain reasons for preserving the
confidentiality of the information."33

IV.

DISCUSSION
As a preliminary matter, I find that Deputy Commissioner Schaffer is

a proper party to assert the deliberative process privilege on behalf of the NYPD.
Although plaintiffs correctly point out that the City has failed to establish explicitly
that Schaffer has been delegated the authority to assert the privilege in accordance
with agency guidelines, it is evident from the City's submissions that Schaffer is a
subordinate of high authority who was delegated the task of revising P.G. 212-60.34
Thus Schaffer is in the best position to assess the NYPD's need for deliberative
confidentiality surrounding theP.G. 212-60 revision, whether or not he was

3!
Resolution Trust Corp., 137 F.RD. at 641 (quoting Mobil Oil Corp.,
102 F.R.D. at 5). Accord Morrissey v. City ofNew York, 171 F.R.D. 85, 89 n.3
(S.D.N.Y. 1997) (collecting cases).

Resolution Trust Corp., 137 F.RD. at 641 (citing, inter alia, Mobil
Oil, 102 F.RD. at 6).
32

33

Id. (quotation marks and citations omitted).

34

See PI. Letter at 6 n.4; City Letter at 1-2; see generally Schaeffer Decl.
9

explicitly or fonnally delegated the authority to assert the privilege. 35

A.

Sufficiency of Privilege Logs
On 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. The City's privilege logs include
the headings "Start Bates" "End Bates" "Author" "Recipient" "Document Date"
,
,
,
,
,
"Subject," and "Privilege." There is nothing improper, in principle, with a
privilege log that utilizes these categories, which are fairly standard. However,
there are two major deficiencies in the City's logs that renders them inadequate.
First, one or more columns is marked "NIA" for a significant number
of entries. Second, the City too often employs vague, confusing, or conclusory
descriptions in the "Subject" column. The use of "NIA" may in certain
circumstances be appropriate. I understand, for example, that the "Recipient"
column might not apply where a document was distributed broadly, or not
distributed at all; that it might not be possible to complete the "Author" column
when the document was unattributed and unsigned; or that the "Document Date"
column might be left blank when a document was left undated. However, a
Cf Resolution Trust OJrp., 137 F.RD. at 641 (finding "that the
decision to assert the privilege was made not by agency policymakers in
consideration of the agency's interest in deliberative confidentiality, but by its
outside counsel as a matter oflitigation strategy").
35

10

missing date, recipient, and/or author, combined with a vague description of the
subject matter of the document, leaves the Court unable to assess whether a given
document is an inter- or intra-agency document, and whether it is deliberative
and/or predecisional. In a few instances, the City has even left the "Privilege"
column blank, leaving the Court in the dark as to which, if any, privilege is being
asserted. 36
Given the volume of documents that the City is seeking to withhold, I
will not specifically address each and every entry in the logs. Instead, I mention a
few illustrative examples, and instruct the City to apply the principles I set forth
here in revising its logs. The very first entry in the 2/25 Log lists a one-page
document, authored by "NYPD Counsel," with no recipient, no document date, and
the subject description "Comm Zoland Housing Verticals Patrols Folder - Deborah
Zoland."37 While that form of shorthand may be comprehensible to NYPD
personnel, I cannot decipher such language in order to determine whether the
privilege applies.
Another series of documents, also lacking recipients or dates, are

See Priv00130l-PrivOOl308 (which is dated 9/27110 but ha-; "N/A"
for author, recipient, and subject, while privilege is left blank); Priv000135­
PrivOOO 138.
36

37
11

described as "Third Endorsement - IDC # 064-299-0479,"38 followed by "Second
Endorsement - IDC # 064-299-0479,"39 and "First Endorsernent."40 Without any
infoffilation as to what "IDC # 064-299-0479" is, the Court is left to speculate as to
what exactly has been endorsed. Yet another document lacks an author, a
recipient, or a document date, and its subject matter is described in the vaguest of
terms as "Patrol Guide - NYCHA Bldgs.,,41 That description in no way satisfies
the City's burden to establish that the deliberative process privilege should apply.
Another document lacking an author or recipient, and dated September 15, 2010,
after the issuance of 1.0. 23, is described merely as "Five Changes."42 Based on
that two-word description, I cannot evaluate whether the five changes were
proposed or enacted, by whom, to what, or anything else that would help determine
whether the document is predecisional or deliberative. In view of opaque
"descriptions" such as these, it is perhaps worth reminding the City that the
purpose of a privilege log is to enable the opposing party and the Court to test the
asserted privilege. The paltry descriptions provided by the City prevent either
38

Priv_Paper_0000064.

39

Priv_Paper_0000065.

40

Priv_Paper_0000066.

41

Priv_Paper_0000540.

42

Priv_Paper_0000552.
12

plaintiffs or the Court from performing any such test. 43
Furthennore, it is difficult for the Court to believe that every single
one of the several hundred documents included in the City's two privilege logs are
properly privileged in their entirety. The law is clear that the privilege does not
protect "purely factual material.,,44 Thus any factual recitations that can be
disentangled from deliberative analyses must be released. It does not appear that
the City has attempted to make any such distinction. The City is therefore ordered
to release those portions of the requested documents that are factual and can be
separated from the deliberative portions of the documents.
Certain entries in the log reflect a blatant abuse of the assertion of
privilege. A prime example is a document authored by John B. Rhea, the
Chairman ofNYCHA, to Raymond Kelly, NYPD Chief, dated December 23, 2009.

43
To provide some additional guidance to the City, I will identify a few
of the entries that I do consider sufficiently detailed and covered by the
deliberative process privilege: Priv_Paper_ 0000554-0000557 ("Draft Interim
Order - Revision of Patrol Guide 212-60 Interior Vertical Patrol of Housing
Authority Buildings - Number Draft 1"); Priv_Paper 0000562-0000563 (,'Latest
Revision to P.G. 212-60 Intcrior Vertical Patrol of Housing AuthorityBuildings");
Priv Paper_00006l3 (''Proposed Language to Add to Patrol Guide Procedure No
212-60 (Interior Vertical Patrol of Housing Authority Buildings) under Additional
Data").

Grand Cent. P'ship, 166 F.3d at 482. Accord Jackson v. City ofNew
York, No. 05 Civ. 721, 2006 WL 2789990, at *4 (S.D.N.Y. Sept. 27,2006)
("[s]egregab1e factual material is not covered by the privilege" (citation omitted)).
44

13

The subject is described as "[Discussions are Essential to Further Mutual Goal of
Providing for Safe and Comfortable Housing Environ~nt for NYCHA
Residents]." The City asserts that this document is protected from disclosure by
the attorney-client and deliberative process privileges. 45 Based on this information
alone, it is obvious that this document cannot be an attorney-client communication,
as it does not involve communications between an attorney and his client, but
rather between the heads of two City agencies. Additionally, the subject
description fails to make clear whether and in what way the document is, in whole
or in part, predecisional or deliberative. Thus while I do not rule here on the
applicability of the attorney-client or attorney work product privileges as they have
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.

B.

Category One and Category Two
Any documents that properly fall into Category One

to the extent

that such documents pertain to the revisions of P.G. 212-60 - or into Category Two

45

14

are most likely privileged. However, the City has failed to provide adequate
information about each document for the Court to ascertain whether the documents
so described properly fall within those categories. Additionally, to the extent that
documents in Category One do not relate to the revisions ofP.G. 212-60, but raher
constitute analysis of NYPD's past policy and practice of vertical patrols in
NYCHA developments, they cannot be considered predecisional. Therefore the
City is ordered to revise its privilege logs with more detailed information about
what is actually contained in the documents subsumed under Category One and
Category Two so that plaintiffs and the Court can assess the propriety of the
assertions of privilege. Not every entry must be revised; however, a significant
portion likely will, in accordance with the principles laid out above.

C.

Category Three
In its letter brief, the City argues that all of the documents it seeks to

withhold are predecisional with respect to the development of the policy ultimately
crystallized in 1.0.23. 46 However, that cannot be the case with the documents in
Category Three, characterized as "drafts of the training curriculum/training
scenarios concerning revised P.G. 212-60," or Category Four, characterized as
"deliberations about substantiated CCRB complaints concerning the legality of

46

City Letter at 1, 7.
15

stops and arrests on NYCHA properties.,,47 The City apparently believes that by
using the word "draft" or "deliberations," the privilege automatically attaches. The
City is mistaken. A draft may be covered by the privilege, to the extent that it
"reflects the personal opinions of the writer rather than the policy of the agency.,,48
However, the fact that something is a draft does not eliminate the City's obligation
to specify the particular policy or decision to which the document relates. 49
Furthermore, the City fails to include information about the draft documents "such
as their 'function and significance in the agency's decisionmaking process,,,,50
which is necessary to justify the assertion of the deliberative process privilege.
To the extent that the City acknowledges that the documents in
Category Three are "drafts of the training curriculumltraining scenarios concerning
revised P.G. 212-60,"51 such drafts were necessarily developed after the
completion of the P. G. 212-60 revision. It seems unlikely that the NYPD would
47

[d. at 3-4.

48

Tigue, 312 F.3d at 80.

See New York Times Co. v. United States Dep 't ofDe!, 499 F. Supp.
2d 501,515 (S.D.N.Y. 2007) ("[t]he mere fact that a document is a draft is not a
sufficient reason to automatically exempt it from disclosure") (quotation marks,
ellipses, and citation omitted).
49

SOld. (quoting The Wilderness Soc); v. United States Dep 't a/the
Interior, 344 F. Supp. 2d 1,5 (D.D.C 2004)).

51

City Letter at 3.
16

waste time developing a curriculum to train officers in a policy that had not yet
been finalized. Thus such documents were certainly not predecisional with respect
to revisions ofP.G. 212-60, and the City acknowledges as much in its reply.
Rather, the City argues that the draft training curriculum are predecisional because
"(1) they precede, in temporal sequence, the final training curriculum; and (2) they

reflect proposals, suggestions and recommendations on how to 'provide []
additional guidance to police officers patrolling NYCHA properties. ",52
The City's arguments are premised on the idea that a training
curriculum and other "guidance" documents constitute an agency policy or
decision. The law is clear that "[t]he privilege ... does not extend to materials
related to the explanation, interpretation or application of an existing policy."53
However, whether training materials can be considered a policy or decision in the
context of the deliberative process privilege is an issue of first impression. Not
every minor question that is contemplated by an agency or employee thereof, and
the way that question is answered, can be considered an agency policy or decision.
"'The [p]rivilege is properly limited to communications relating to policy
formulation at the higher levels of government; it does not operate indiscriminately
52

City Reply at 5 (quoting unknown source).

Resolution Trust Corp., 137 F.RD. at 641 (quoting Mobil Oil Chrp.,
102 F.R.D. at 5).
53

17

to shield all decision-making by public officials. ",54
Documents written to train officers in the implementation of 1.0. 23
do not constitute a policy, but rather are materials intended to explain an existing
policy - 1.0. 23. While high-ranking NYPD officers were involved in designing
the training curriculum, their involvement is not enough to transform their
explanations of the policy into the equivalent of a policy or decision. 55 Thus
Category Three documents are not covered by the deliberative process privilege, as
they are not predecisional to an agency policy. It may be that certain of the
documents are covered by the attorney-client privilege or constitute attorney work
product. If so, the City should designate them as such, providing sufficient detail
to analyze the assertion of those privileges. 56

Velez v. City ofNY., No. CV 2004-1775,2010 WL 2265443 at *4
(E.D.N.Y. June 2, 2010) (quoting Smtt v. Board ofEduc. of City ofEast Orange,
219 F.R.D. 333, 337 (D.N.J. 2004)). Accord Grossman v. Schwartz, 125 F.RD.
376,381 (S.D.N.Y. 1989); Torr~ v. City Univ. ofNY., No. 90 Civ. 2278,1992
WL 380561, at *7 (S.D.N.Y. Dec. 3, 1992).
54

55

See Schaeffer Dec!.

~~

5, 6.

In view of footnote 2 in the City's Reply, which misconstrues
plaintiffs' argument about attorney-client privilege as an argument about attorney
work product, the City is reminded that attorney work product only pertains to
documents prepared in anticipation for litigation, although the definition of
attorney-client privilege is significantly broader. Compare New York Times Co.,
499 F. Supp. 2d at 517 ("The attorney work product privilege protects the files and
the mental impressions of an attorney ... prepared in anticipation of litigation.")
(quotation marks and citation omitted), and In re County ofErie, 473 F.3d 4l3,
56

18

D.

Category Four
The documents that fall into Category Four - "deliberations about

substantiated CCRB complaints concerning the legality of stops and arrests on
NYCHA properties,,57 - are clearly not covered by the deliberative process
privilege. Again, the City believes that by using the word "deliberation," it has
established the privilege. However, courts have consistently held that
"recommendations concerning disciplinary review of a discrete incident do not
involve the policy formulations protected under the deliberative process
privilege."58 Category Four documents, as described by the City, fall precisely into
this area of non-privileged communications.
As noted in the discussion of Category Three above, it may be that
certain of these documents are covered by the attorney-client privilege or the work
product privilege. The City is ordered to reevaluate the documents in Category
Four with the Court's TIlling in mind, to release those documents that do not fall
under any of the privileges, and to redraft a privilege log to include those

418 (2d Cir. 2007) ("The attorney-client privilege protects most confidential
communications between government counsel and their clients that are made for
the purpose of obtaining or providing legal assistance.").
57

City Letter at 4.

58

Velez, 2010 WL 2265443 at *4.
19

documents that the City still considers privileged under the attorney-client or work
product privileges.

v.

CONCLUSION

In accordance with the Court's instructions above, the City is ordered
to review its assertions of privilege; revise and resubmit its privilege logs by May
20, 2011; and release the requested documents that are not covered by the
deliberative process privilege, or any other privilege, in view of the Court's
rulings, whether in their entirety or in redacted form as appropriate.

Dated:

New York, New York
May 4,2011

20

Appearances
For Plaintiffs:
lohnathan Smith, Esq.

Johanna B. Steinberg, Esq.

NAACP Legal Defense & Educational Fund, Inc.

99 Hudson Street, 16 th Floor

New York, New York 10013

[phone]
William Gibney, Esq.
Nancy Rosenbloom, Esq.
Legal Aid Society of New York
199 Water Street
New York, New York 10038
[phone]
Katharine E.G. Brooker, Esq.
Matthew 1. 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:
Tonya lenerette
Morgan David Kunz
David M. Hazan
Bradford Collins Patrick
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007
[phone]

21

For Defendant NYCHA:
Steven Jay Rappaport, Esq.

New York City Housing Authority

250 Broadway, 9th Floor

New York, New York 10007

[phone]

22