Stinson et al v. The City of New York
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
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SHARIF STINSON, et al.,
10 Civ. 4228
CITY OF NEW YORK, et a1.,
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A P PEA RAN C E S:
COHEN & FITCH LLP
New York, NY 10007
Joshua P. Fitch, Esq.
raId M. Cohen, Esq.
THE LAW OFFICES OF JON L. NORINSBERG
225 Broadway, Suite 2700
New York, NY 10007
Jon L. Norinsberg, Esq.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
51 Madison Avenue, 22nd
New York, NY 10010
Stephen R. Neuwirth, Esq.
Steig D. Olson, Esq.
Elinor C. Sutton, Esq.
for the Defendants
MICHAEL A. CARDOZO
CORPORATION COUNSEL OF THE CITY OF NEW YORK
100 Church Street
New York, NY 10007
Qiana C. Smith-Williams, Esq.
Zachary W. Carter, Esq.
Steven M. Silverberg, Esq., Of Counsel
Swee t , D. J . ,
Defendants have moved, pursuant to Local Civil Rule
6.3, for reconsideration of the Court's Order of February 11,
("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
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.
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
potential conflict involved
ability of the officers to seek
sentation, and t
iffs' request for the requirement of
a written statement is granted.
Prior Proceedings and Facts
iled recitation of the prior proceedings and
facts of this case is provided in the April 23, 2012 Opinion
granting Plaintiffs' motion for
N.Y., No. 10 Civ. 4228 (RWS), 2012 WL
Stinson v. City
1450553, at *2 5 (S.D.N.Y. Apr. 23, 2012)
("April 23 Opinion").
y with these prior proceedings and
instant motions are set
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.
(See City's Letter, dated Feb.
("City Feb 7,2014 Ltr.").)
, the Ci
to Plaintiffs' demand for the videotaped CompStat
meetings based on
ilege concerns, and because the
agreements in this case allegedly offered
On January 31, 2013, Plaintiffs again moved to compel
s of CompStat meet
disclosure of all
s for t
period of May 2007 through December 2010,
inadequacy and ill
pertaining to six
ility of the accompanying
rberg Decl. at
Letter, dated Jan. 31, 2014
(npl. Jan 31, 2013 Ltr.").)
February 11, 2014, this motion was heard and marked fully
concerns, Plaintiffs were
, which based on t
to the liti
relevancy and pri
To address the compet
signate a limited subset
notes were especial
ion and which the C
y could still object to on
grounds, to be viewed attorne
Okay. Well this is what I think we'll do. The
signate which videos they want.
11 be produced attorneys' eyes only.
plaintiffs will indicate any
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
(Feb. 11 Tr. at 9-10.) The Court cautioned sanctions if any
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
So I take it very seriously.
And if there is any kind of a leak and
hell to pay.
On February 25, 2014, t
rtaining to 56 meetings, across various
encompassing approximately 170 hours of
Y moved for
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
r words, t
reasonably be expected to alter the conclusion reached by t
70 F.3d 255, 257
see also Farez-Espinoza v. Napolitano,
(HB), 2009 U.S.
v. CSX Tran
st. ELXIS 353
Pursuant to Local
08 Civ. 11060
, a t *9 (S.D.N.Y. Apr. 27,
1 Rule 6.3 t
ior decision to "correct a clear error or prevent
Ltd. v. BestMed LLC, 2012 U.S.
st. LEXIS 56800, at *2 3 (S.D.N.Y. Apr. 23, 2012)
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
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,
("In re City")
607 F.3d 923 (2d Cir.
an attorneys' eyes only
ion of certain CompStat videos, despite potent
conflicts with the lawen
As an initial matter, Chase is irrelevant to t
, the Second Circuit, pursuant to a
mandamus petition, faced a comparable issue but
vacated the Magistrate
of the documents with t
The Second Circuit
's order, which allowed production
attorneys' eyes only 1
because it would permit the precise type of disclosure the
disclosure to opposi
was designed to prevent, namely,
counsel in the litigation, and would
undermine the purpose of
, to encourage free
full communication between lawyer and client.
In the case of the attorney-client privi
litigant claiming the pr
rsary counsel to
the documents in question.
The attorne '-eyes-only
not limit disclosure to persons
whose knowledge of
confident 1 communication is
not material to the purpose of t
contrary, it allows one kind of critical disclosure -
to opposing counsel in 1 igation the p
was designed to prevent.
. the pr
lege rests on
the belief that in an adversary system, a
sure to an attorney is a necess
predicate to skillful advocacy and
le 1 advice. The existence of the
allows attorneys to assure
information given their attorneys will remain
If opposing counsel is allowed access to information
arguably protected by the privilege
adjudication as to whether
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
iality if the procedure at issue here becomes
routine. At best, an attorney can assure the client
that the communication, although made known to
, 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).
import, as the
lege is of e
underlying concerns of,
se opinion shows,
and the potential consequences of
torneys' eyes only
limitation relating to, the two pri
leges are diss
Opposing counsel having access to attorney-client in
tical harms the absolute privilege is
one of the
prevent; if a client worries
to his communications, a chilling ef
ct is almost
lege aims to protect
investigate tactics and conf
to the public at large. Oppos
attorneys accessing the
confidence is not what the privi
Further, the lawen
and as such "there are circumstances in which information
privilege must nevertheless be disclosed,"
relevance absent alternative means.
607 F.3d 923, 940 (2d eir. 2010)
privilege is a
[thus] there are
ed privilege, not an absolute
rcumstances in whi
subject to the privilege must nevertheless be
See In re the
not overlook or contradict the
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.
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
Even if the "attorneys' eyes only" procedure works in
some commercial litigation, as well as some criminal
. 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.
is that injury more severe, it is far more difficult
[IJf confidential law enforcement
information is disclosed on an "attorneys' eyes only"
ice may never know if their undercover
been compromised by an
disclosure of that information.
ty of New York,
noted the i
607 F.3d at 936.
lity of courts to mainta
when confidential materials are fil
The Second Circuit
"under seal," and the
disclosure in the case at bar.
The Second Circuit limited its ruling to the
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.
Reconsideration Memorandum, "Def. Recon. Br."; at 9.)
11 Hearing did not, as Defendants contend,
r the "wholesale
leged materials to
Instead, the Court specified that
Plaintiffs should designate those videos most relevant to the
and that "t
ion, based on t
ing the meetings,
fendants will then have an opportunity to assert
want to rna
(Feb. 11 Trans. at 9-10.)
with respect to those
ndants' current position represents
more a disagreement with the Court's Order in the
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
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
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)
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.
d not raise their new proposed constructions in a timely
(see also Lt. Corbett Decl.
("I am unaware of
any practical method of isolating any mention of C-Summonses
issued by a subset of six NYPD precincts on
do not believe there is a practical way to produce the video
aintiffs are currently seeking without also
divulging highly confidential information that has no connection
issuance of C-Summonses, particularly not in
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
either audio or video recordings of the COMPSTAT meetings.").)
Throughout discussions concerning the CompStat videos,
Defendants consistently contended that there was no way to
information without capturing pr
, 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
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
proposed alternative only to now suggest what they initially
maintained was impractical.
However, given the import of
privilege concerns involved, now t
s that this alternative more adequat
concerns at stake, and
st to amend in
redact the videos
its initial position
production is grant
11 provide a privilege log with re
the redacted portions of the
s, at wh
will have the opportunity to object and liti
with Defendants "
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
rs at any
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
19, 2014 Hearing,
City maintains that they are not
senting Non-Party Officers.
This assertion will
The present issue concerns whether the C
required to provide the non-party officers a statement in
ng this privil
and the right of the officers
to seek independent counsel, whi
the City rna
done and will continue to do ve
ains it has
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)
ce is the 1
1999 U.S. Dist.
1 counsel for the City and C
Corporation Counsel's discussion
rse City employees about
in which the City (or City agency) is a
by the City's attorney-client and/or work-product pr
• /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.
As such, communications between corporation counsel and non
party officers relating to depos
ion preparation are
However, Plaintiffs do not seek to inquire as to the
content of co
ion counsel's preparation of
relating to the depositions.
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
cers of this potential conflict and
Plaintiffs have the right to verify
ven the continued conflict between the parties
to this issue and others, to avoid unnecessary delay
and further contention, the City will prepare a proposed
statement to relay to of
ling the potential
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.
the ability to ask the officer if he
understands the statement in question, but may not inquire as to
further communications t
officer had with
city relating to
preparation of the deposition.
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
It is so ordered.
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