Stinson et al v. The City of New York

Filing 102

OPINION. For the foregoing reasons, Defendants' motion for reconsideration is denied, and Plaintiff's request for the City to provide non-party officers with a statement relating the potential conflict of representation by corporation couns el is granted. It is so ordered. re: 89 MOTION for Reconsideration of the Court's February 11, 2014 Order directing the City to provide CompStat meeting videos requested by plaintiffs for review by their counsel, irrespective of the privileged material on the videos filed by The City of New York, Raymond W. Kelly. (Signed by Judge Robert W. Sweet on 3/24/2014) (rjm) Modified on 3/25/2014 (rjm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------- ------ -------x
SHARIF STINSON, et al.,
PIa

iffs,
10 Civ. 4228

- against ­
OPINION
CITY OF NEW YORK, et a1.,
Defendants.

------------ ------ ----x
A P PEA RAN C E S:
Att

the Plaintiff

COHEN & FITCH LLP

225 Broadway

New York, NY 10007

By:
Joshua P. Fitch, Esq.

raId M. Cohen, Esq.

THE LAW OFFICES OF JON L. NORINSBERG

225 Broadway, Suite 2700

New York, NY 10007

By:
Jon L. Norinsberg, Esq.

QUINN EMANUEL URQUHART & SULLIVAN, LLP

51 Madison Avenue, 22nd
oor

New York, NY 10010

By:
Stephen R. Neuwirth, Esq.

Steig D. Olson, Esq.

Elinor C. Sutton, Esq.

Atto

for the Defendants

MICHAEL A. CARDOZO
CORPORATION COUNSEL OF THE CITY OF NEW YORK
100 Church Street
New York, NY 10007

By:

Qiana C. Smith-Williams, Esq.
Zachary W. Carter, Esq.
Steven M. Silverberg, Esq., Of Counsel

1

Swee t , D. J . ,

Defendants have moved, pursuant to Local Civil Rule
6.3, for reconsideration of the Court's Order of February 11,
2014

("Feb. 11 Hearing"), directing the City of New York (the

"City") to provide a limited set of CompStat meeting videos to
be designated by Plaintiffs.
dated Feb. 11, 2014

(See Transcript of Procee

("Feb. 11 Trans.").)

Because the Defendants have fai
controlling law or facts that t
is denied.

ngs,

to identify any

Court overlooked, the motion

However, Plaintiff's alternative proposal, which was

not previously raised, to redact privileged portions of the
videos, is granted in order to appropriately balance the
competing concerns involved.

Plaintif
Counsel from

have also moved to disqualify Corporation
senting non-party officers, or in the

alternative requiring the City to provide a written statement to
all non-party officers of
City's

potential conflict involved

ability of the officers to seek

sentation, and t

independent counsel.

PI

the

iffs' request for the requirement of

a written statement is granted.

2

Prior Proceedings and Facts

A

iled recitation of the prior proceedings and

facts of this case is provided in the April 23, 2012 Opinion
granting Plaintiffs' motion for

ass Certification.

N.Y., No. 10 Civ. 4228 (RWS), 2012 WL

Stinson v. City

1450553, at *2 5 (S.D.N.Y. Apr. 23, 2012)

Famili
assumed.

See

("April 23 Opinion").

y with these prior proceedings and

Facts re

to t

instant motions are set

s is
rth

below.

A. Proceedings Surrounding the Feb. 11 Hearing Relating to
the CompStat Video Production

In 2010, the City produced minutes of the CompStat
meetings, which had

en redacted based on relevance, the

deliberate process privi

, individual privacy concerns, and

law enforcement privilege.
7,2014
object

(See City's Letter, dated Feb.

("City Feb 7,2014 Ltr.").)

At

is t

, the Ci

to Plaintiffs' demand for the videotaped CompStat

meetings based on
confidential

ilege concerns, and because the

agreements in this case allegedly offered

insufficient production.

(See id.)

3

On January 31, 2013, Plaintiffs again moved to compel
s of CompStat meet

disclosure of all
prec

s for t

given t

period of May 2007 through December 2010,

inadequacy and ill

meeting notes.

pertaining to six

(See Si

ility of the accompanying

rberg Decl. at

Letter, dated Jan. 31, 2014

~

3; Plaintiffs'

(npl. Jan 31, 2013 Ltr.").)

On

February 11, 2014, this motion was heard and marked fully
submitted.

concerns, Plaintiffs were
of the

0

red to

, which based on t

to the liti
privi

relevancy and pri

To address the compet

signate a limited subset

notes were especial

ion and which the C

lege

relevant

y could still object to on

grounds, to be viewed attorne

'eyes only:

Okay. Well this is what I think we'll do. The
plaintiffs will
signate which videos they want.
The
videos
11 be produced attorneys' eyes only.
The
plaintiffs will indicate any
ions of
videos
they
lieve have an evident ry value, and the
defendants will then have an oppo
ty to assert any
privilege arguments they want to make with respect to
those
signations.

(Feb. 11 Tr. at 9-10.) The Court cautioned sanctions if any
pr

leged in

rmation was somehow leaked,

Now, I take the attorneys' eyes only very seriously_
If there is a leak in this case of any
, I am
going to ask
united States Attorney to investigate
it, because's a direct order of
Court
it
will
been
lated.
So I take it very seriously.
And if there is any kind of a leak and
can be
proven, t
re will
hell to pay.

4

(Id. )

Following t
videos

Court's order,

aintiffs

On February 25, 2014, t

marked

cincts,

rtaining to 56 meetings, across various

encompassing approximately 170 hours of

recons

signated

ration of

Court's

ly submitt

deo.

Y moved for
r.

0

This motion was heard and

on March 19, 2014.

Applicable Legal Standard

A motion for reconsideration is proper where "the
moving party can point to controlling decisions or data that
court overlooked

matters, in

r words, t

might

reasonably be expected to alter the conclusion reached by t
court. II
1995)

i

Shra

., Inc.,

70 F.3d 255, 257

see also Farez-Espinoza v. Napolitano,

(HB), 2009 U.S.
2009).

v. CSX Tran

st. ELXIS 353

Pursuant to Local

reconsider a

(2d Cir.

08 Civ. 11060

, a t *9 (S.D.N.Y. Apr. 27,

1 Rule 6.3 t

Court may

ior decision to "correct a clear error or prevent

manifest injustice."

Medi

Ltd. v. BestMed LLC, 2012 U.S.

st. LEXIS 56800, at *2 3 (S.D.N.Y. Apr. 23, 2012)

5

(c

ing RST

(2005)

Inc. v. Research in Motion Ltd., 597 F. Supp. 2d 362,

2009 WL 274467, at *1 (S.D.N.Y. 2009)).

Defendants' Motion for Reconsideration is Denied Because there
is No Evidence that the Feb. 11 Hearing Overlooked Any
Controlling Law or Facts; However, Plaintiffs' Alternative
Proposal, not Previously Raised, is Granted to Appropriate
Balance the Competing Concerns

Defendants' maintain

this Court overlooked both

Second Circuit's decision in

se Manhattan Bank v. Turner

964 F.2d 159 (2d Cir. 1992)

&

ion in In re City of New York,
2010)

("In re City")

in

("Chase")

and the

607 F.3d 923 (2d Cir.

an attorneys' eyes only

1

ion of certain CompStat videos, despite potent
conflicts with the lawen

1

privilege.

As an initial matter, Chase is irrelevant to t
tant proceedings.

, the Second Circuit, pursuant to a

mandamus petition, faced a comparable issue but
lege dispute.

an attorney-client
vacated the Magistrate
of the documents with t

t

context

The Second Circuit

's order, which allowed production
attorneys' eyes only 1

tation,

because it would permit the precise type of disclosure the
attorney-client pr
disclosure to opposi

Ie

was designed to prevent, namely,
counsel in the litigation, and would

6

undermine the purpose of

privil

, to encourage free

full communication between lawyer and client.

The opinion

explains,

In the case of the attorney-client privi
. a
litigant claiming the pr
lege wou
probably prefer
almost anyone
r than
rsary counsel to
ew
the documents in question.
The attorne '-eyes-only
condition simply
not limit disclosure to persons
whose knowledge of
confident 1 communication is
not material to the purpose of t
privil
To the
contrary, it allows one kind of critical disclosure -­
to opposing counsel in 1 igation the p
lege
was designed to prevent.
. the pr
lege rests on
the belief that in an adversary system, a
ient's
11 dis
sure to an attorney is a necess
predicate to skillful advocacy and
lly informed
le 1 advice. The existence of the
ivilege thus
allows attorneys to assure
ients
any
information given their attorneys will remain
confidential.
If opposing counsel is allowed access to information
arguably protected by the privilege
fore an
adjudication as to whether
privi
applies, a
pertinent aspect of confidentiality will be lost, even
though communications later deemed to be privileged
11 be inadmissible at trial. Most importantly, an
attorney cannot assure a client of complete
con
iality if the procedure at issue here becomes
routine. At best, an attorney can assure the client
that the communication, although made known to
adversa
, will not be admiss
e as evidence at
t a l . This limited assurance, however, will not
to ensure free
full communication by
s who do not rate
y a pr
lege that is
operative only at the time of trial.

Id. at 154 65 (emphasis added).

7

While
import, as the

lege is of e

law enforcement

underlying concerns of,

se opinion shows,

and the potential consequences of

torneys' eyes only

limitation relating to, the two pri

leges are diss

lar.

Opposing counsel having access to attorney-client in
tical harms the absolute privilege is

one of the

1

rmation is
signed to

prevent; if a client worries

adversary will

to his communications, a chilling ef

ct is almost

law enforcement

contrast,

access
n.

In

lege aims to protect

investigate tactics and conf

ial individuals

to the public at large. Oppos

attorneys accessing the

information
protect.

disclosure

confidence is not what the privi

Further, the lawen

aims to

privilege is

ified,

and as such "there are circumstances in which information
subject to
includi
City

en
privile

privilege must nevertheless be disclosed,"
relevance absent alternative means.

N.Y.,

607 F.3d 923, 940 (2d eir. 2010)

privilege is a
[thus] there are

11 Hearing

("[T]he law

ed privilege, not an absolute

li

rcumstances in whi

subject to the privilege must nevertheless be
such,

See In re the

information
sclosed.").

not overlook or contradict the

Chase

8

As

Similarly, the Court's ruling did not contravene any
bright line obligation imposed in In re City.

In In re City, the Second Circuit addressed an
attorneys' eyes only confidentiality restriction in the context
of a Magistrate Judge's disclosure order of documents the City
claimed should be protected by the law enforcement privilege.
The Magistrate Judge held that certain NYPD investigate field
reports were categorically relevant to plaintiff's case and
could, notwithstanding the law enforcement privilege, be
disclosed with certain redactions made by the Magistrate Judge,
with disclosure on an attorneys' eyes only basis.

The Second

Circuit decided that mandamus review was appropriate and vacated
the Magistrate Judge's order.

The Second Circuit admonished

that the consequences of accidental disclosure of information
protected by the law enforcement privilege were too severe to be
employed, stating,

Even if the "attorneys' eyes only" procedure works in
some commercial litigation, as well as some criminal
cases.
. the consequences of accidental disclosure
are too severe to employ the procedure here.
[TheJ accidental disclosure of the Field Reports risks
undermining important NYPD investigatory procedures
and thereby endangering the safety of law enforcement
personnel and countless New York residents.
Not only
is that injury more severe, it is far more difficult
to remedy.
[IJf confidential law enforcement
information is disclosed on an "attorneys' eyes only"
9

basis, the
ice may never know if their undercover
operations
been compromised by an
horized
disclosure of that information.

In re

ty of New York,

furt

noted the i

607 F.3d at 936.

lity of courts to mainta

when confidential materials are fil
su

The Second Circuit
total secrecy

"under seal," and the

disclosure in the case at bar.

cted unauthoriz

The Second Circuit limited its ruling to the

See id.

s presented in

case at bar.

Despite Defendants' contentions, the order in the Feb.
11 Hearing is not "virtually

se, or warned a

ical" to t

inst in In re City.

(De

struck down
s'

Reconsideration Memorandum, "Def. Recon. Br."; at 9.)
11 Hearing did not, as Defendants contend,
sclosure of

ially irre

opposing counsel."

(Id. )

The

r the "wholesale

and pr

leged materials to

Instead, the Court specified that

Plaintiffs should designate those videos most relevant to the
stant lit
and that "t
any privi
designations."

ion, based on t

notes descr

ing the meetings,

fendants will then have an opportunity to assert
arguments

want to rna

(Feb. 11 Trans. at 9-10.)

10

with respect to those

Accordingly, De

ndants' current position represents

more a disagreement with the Court's Order in the
fered 1

ence of any

1 basis to conclude that the decision was

"obviously wrong," than a showing of "manifest injustice," and
reconsideration is inappropriate.

Cohn v. Metro Li

Ins., Co.,

No. 07-Civ-0928 (HB), 2007 WL 2710393 (S.D.N.Y. Sept. 7, 2007).

wholesale production of the

As an alternative to

videos to Plaintiffs, the City now maintains

it is prepared

to provide Plaintiffs with relevant portions of the CompStat
videos pertaining to t

six police prec

s for which they

sought production, on a rolling basis, over the next 30 days.

A reconsideration motion is an inappropriate avenue
for this request, as the City previously maintained that such an
alternat
accomplish.

was impractical, if not virtually impossible, to

See IP Innova

on LLC v. Vizio, Inc., No. 08-Civ­

393, 2010 WL 245557, at *2 (N.D. Ill. Jan. 13, 2010)

("Thus, it

is improper for Defendants to seek a reconsideration of the
court's ruling when during the briefing of the claim
construction Defendants took a contrary position.

Defendants

d not raise their new proposed constructions in a timely
manner.");

(see also Lt. Corbett Decl.

~

21

("I am unaware of

any practical method of isolating any mention of C-Summonses
11

issued by a subset of six NYPD precincts on

videos

I

do not believe there is a practical way to produce the video
aintiffs are currently seeking without also

recordings that

divulging highly confidential information that has no connection
issuance of C-Summonses, particularly not in

whatsoever to

ion.";

context of this liti

Letter from Q. Smith-Williams to S.

City's September 24, 2013
son, stating that they

"are aware of no practical method for excising in

rmation from

either audio or video recordings of the COMPSTAT meetings.").)
Throughout discussions concerning the CompStat videos,
Defendants consistently contended that there was no way to
produce

reques

communications.
such a

information without capturing pr

In

leged

, the Court specifically tried to strike

ance by asking

City if such a procedure was

possible and the City maintained that it was not:

THE COURT: I assume t h a t ' s not technologically
possible to search the vi os for, say, reference Ii
summons.
I take
you don't have that capacity?
MS. SMITH-WILLAIMS: No, your Honor .

. 11 Trans. at 11712.)

There is some credence to Plaintiffs' contention
the City employed inappropriate gamesmanship in withholding the

12

proposed alternative only to now suggest what they initially
maintained was impractical.

However, given the import of
such an

privilege concerns involved, now t
Court
compet

ion exists,

s that this alternative more adequat

y balances

City's re

concerns at stake, and

st to amend in

redact the videos

its initial position

ivilege be

re

production is grant

The City

11 provide a privilege log with re

the redacted portions of the

s, at wh

point Plaintiffs

will have the opportunity to object and liti
object

This

with Defendants "

11 ostens
lateral

y alleviate
ions."

to

e such
aintiffs' concern
intiffs'

opposition Memorandum, "Pl. Recon. Opp."; at 14 15.)

Corporation Counsel Must Provide a Written Statement to Non­
Party Officers Disclosing the Potential Conflict in the
Counsel's Representation and Advising the Officers of the
Appropriateness of Seeking Independent Counsel

Plaintiffs also move to disqualify Corporat
from representing individual
sitions in

ice off

rs at any

Counsel
ure

s matter, given the conflict of interest

the City and the individual police officers who may
testify in this action.
both parties. However, as

This inherent conflict is apparent to
Court specified dur
13

the March

19, 2014 Hearing,

City maintains that they are not

senting Non-Party Officers.

This assertion will

credited.

The present issue concerns whether the C

should be

required to provide the non-party officers a statement in
writing speci

ng this privil

and the right of the officers

to seek independent counsel, whi

the City rna

done and will continue to do ve

lly, and

ains it has
the

Plaintiffs may inquire as to what exactly the City has relayed
to the officers concerning this conflict during depositions 1 •

The City is correct that in the course of defending
the City and its interest, co
may continue, to confer with
City. See, e.g., Coleman v.

ration counsel is permitted, and
officers, as employees of t

ty of New York,

LEXIS 10405 at *5 (S.D.N.Y. July 8, 1999)
Counsel's Of
agencies .
with non-

ce is the 1
[a]s such,

1999 U.S. Dist.

("[TJhe Corporation

1 counsel for the City and C
Corporation Counsel's discussion

rse City employees about

in which the City (or City agency) is a

ir deposition

a case

fendant is

by the City's attorney-client and/or work-product pr

ected
1

• /I) •

: According to Plaintiffs, the City has claimed
lege when Plaintiffs have
asked non-party orrlcers whether the City's corporation counsel informed the
officers f the conflict of corporation counsel's representation.

14

As such, communications between corporation counsel and non­
party officers relating to depos
pr

ion preparation are

See id.

leged.

However, Plaintiffs do not seek to inquire as to the
content of co

ion counsel's preparation of

relating to the depositions.

officers

Defendants' acknowledgement to the

officers of an inherent conflict in representation of the
officers by corporation counsel, and the ability of the officers
to seek independent counsel, is not subject to privile

, but is

an appropriate and necessary instruction.

Though the City is

correct that such statements are not a wa

r, the City has

agreed to instruct the

0

cers of this potential conflict and

Plaintiffs have the right to verify

s assertion.

ven the continued conflict between the parties
relat

to this issue and others, to avoid unnecessary delay

and further contention, the City will prepare a proposed
statement to relay to of
of

cers, det

ling the potential

ict

sentation by corporation counsel and the right of the

officer to seek independent counsel, which it will have the
officers sign prior to deposition

scussions and which it will

provide to Plaintiffs prior to that officer's deposition.
Plaintif

will then

the ability to ask the officer if he
15

understands the statement in question, but may not inquire as to
further communications t

officer had with

city relating to

preparation of the deposition.

Conclusion

For t

foregoing reasons,

Defendants' motion

r

reconsideration is denied, and Plaintiff's request for the City
to provide non-party officers with a statement relating the
potential conflict of representation by corporation counsel is
granted.

It is so ordered.

New

York~

March~ 'f'

NY
2014

16