Stinson et al v. The City of New York

Filing 164

OPINION: The Plaintiffs in this class action have moved to compel the nonparty Patrolmen's Benevolent Association of the City of New York (the "PBA") to produce documents pursuant to a subpoena and an April 17, 2014 order of this Court (the "April 17 Order"). Based on the conclusions set forth within, the motion is granted. It is so ordered. (See Order.) (Signed by Judge Robert W. Sweet on 9/18/2014) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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SHARIF STINSON, et al.,
Plaintiffs,
10 Civ. 4228

(RWS)

- against OPINION
CITY OF NEW YORK, et al.,

Defendants.

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A P P E A RA N C E S:
Attorneys for the Plaintiffs

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COHEN & FITCH LLP
225 Broadway, Suite 2700
New York, NY 10007
By:
Gerald M. Cohen, Esq.
Joshua P. Fitch, Esq.
THE LAW OFFICES OF JON L. NORINSBERG, ESQ.
225 Broadway, Suite 2700
New York, NY 10007
By:
Jon L. Norinsberg, Esq.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
51 Madison Avenue
New York, NY 10010
By:
Stephen R. Neuwirth, Esq.
Steig D. Olson, Esq.
Attorneys for the Defendants
ZACHARY W. CARTER
CORPORATION COUNSEL OF THE CITY OF NEW YORK
100 Church Street
New York, NY 10007
By: Qiana C. Smith-Williams, Esq.

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Attorneys for Patrick Lynch and Police Patrolrnen's
Benevolent Association of the City of New York, Inc.
DECHERT, LLP
1095 Avenue of the Americas
New York, NY 10036
By:
Edward A. McDonald, Esq.

Sweet, D.J.

The Plaintiffs in this class action have moved to
compel the nonparty Patrolmen's Benevolent Association of the
City of New York (the "PBA") to produce documents pursuant to a
subpoena and an April 17, 2014 order of this Court

(the "April

1 7 Order") .

Based on the conclusions set forth below, the motion
is granted.

Prior Proceedings

On March 26, 2014, Plaintiffs moved the Court to
compel the production of certain documents in response to
Plaintiffs' August 6, 2013 subpoena, as modified on March 10,
2014

("March 10 Subpoena") .

(See Pls.' Mot. to Compel Ex. D).

On April 7, 2014, Plaintiffs sought an order requiring the PBA
to produce documents responsive to seven of the requests for
production contained in Plaintiffs' March 10 Subpoena (Nos. 2-4,
6-8, and 17).

(See Pls.' Mot. to Compel Ex. E.)

The April 17

Order required the PBA to produce or log documents responsive to
those requests.

1

Following the Court's Order, the PBA produced 167
pages responsive to one of the request for production (No. 8).
According to its privilege log, the PBA has withheld five
documents on the basis of privilege.

The PBA has not produced

certain documents responsive to request No. 8 on the basis of
confidentiality and Civil Rights Law Section 50-a.

The documents sought by the Plaintiffs include:

•

"All documents You have collected from any source
concerning any allegation of the existence of a Quota, or
the use of a Quota, by the NYPD in any performance
evaluation or disciplinary or grievance proceedings."
(See Ex. E.)

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"All documents provided to the PBA by any NYPD Officer,
current or former, alleging or relating to the existence
of a Quota or the use of a Quota by the NYPD, including
any completed Affidavit-Summons Quota or any similar
affidavit or form,

correspondence of any type, and any

documentation."

•

"All documents concerning any grievance, individual or
group, pursued by or with the assistance of You, arising
2

out of the alleged maintenance or use of summons Quotas
by the NYPD, including all Formal Grievances filed by You
on behalf of NYPD Officers that relate to Quotas."

•

(Id.)

"All documents relating to any grievance, formal or
informal, by an NYPD Officer that relates to the NYPD's
alleged use of Quotas, regardless of whether You elected
to represent the NYPD Officer in that grievance,
including [a list of specific grievances]."

•

"Documents sufficient to show the PBA's position with
regard to Senate Bill S2956A, including data,
information, or research considered or relied upon in
forming that position, and documents sufficient to show
any differences in the position of the PBA and the NYPD
regarding Senate Bill S2956A and the reasons behind those
differences."

•

(Id.)

Documents and information "concerning or relat[ing] to
positions that the PBA has expressed or supported through
various news articles, memoranda, press releases, and
advertisements."

(See Ex. D.)

3

The underlying action is described in the Court's
April 23, 2012 opinion.

See Stinson v. City of New York, 282

F.R.D. 360 (S.D.N.Y. 2012).

The instant motion was marked fully

submitted on September 10, 2014.

The Documents Relating to Senate Bill S2956A And Public
Statements Relating to Quotas

Documents relating to Senate Bill S2956A and PBA
statements relating to quotas will be produced.

In the absence of any production, counsel for the PBA
will submit a statement satisfying the requirements set forth in
Nycomed U.S. Inc. v. Glenmark Generics Ltd., No. 08 Civ. 5023,
2010 WL 3173785, *3 (E.D.N.Y. Aug. 11, 2010)

("A party that has

been served with a request for ESI is charged with find[ing] and
disclos[ing] all responsive documents or properly set[ting]
forth why the documents are being withheld.

This obligation to

conduct a diligent search requires good faith on the part of the
responding party and its attorneys, and mandates that they work
together to ensure that both understand how and where electronic
documents, records and emails are maintained and to determine
how best to locate, review and product responsive documents.
When parties and/or their counsel fail in their duty to conduct

4

proper searches of ESI, sanctions may be appropriate .
(internal quotation marks and citations omitted)).

,,

See also

Richard Green (Fine Paintings) v. Mcclendon, 262 F.R.D. 284, 290
(S.D.N.Y. 2009)

("Attorneys must take responsibility for

ensuring that their clients conduct a comprehensive and
appropriate document search.")

(internal quotation marks

omitted).

Summary Quota Affidavits Will Be Produced

The PBA website directs officers to provide the
completed Affidavits directly to their "Delegate or Trustee" and
testimony has been submitted that confirms that affiants
followed this directed procedure.

A PBA delegate and Grievance

Officer recently confirmed that, in his experience, these
affidavits are not provided directly to PBA counsel but rather
are given to a PBA delegate who then gives them to a PBA
trustee.

(See Pls.' Reply Ex. P.)

The PBA trustees are not

lawyers, such that any material the officer submitted goes
through at least two rounds of transfers and communications
before reaching a lawyer.

(Id.)

In addition, the PBA has not provided the names of the
affiants in accordance with applicable federal and local rules
5

so that Plaintiffs may assess the PBA's privilege claim.

If the

PBA is concerned that disclosing the names would result in
retaliatory harm to those police officers, the PBA may designate
the affidavits Attorneys' Eyes Only ("AEO").

The PBA has not established an attorney client
privilege and the affidavits will be produced.

Quota Related Grievances

All filed grievances with supporting materials will be
produced and may well have been produced.

The grievance forms

and supporting materials submitted to counsel for officers who
did not file grievances may be withheld upon the filing of an
appropriate privilege log including the identification of the
officers and the recipients.

A confidentiality designation may

be appropriate.

Documentary evidence submitted in connection with the
grievances will be produced unless made subject to an
appropriate privilege log.

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It is so ordered.

Dated:

New York, New York
1(/,
September ff' 2014
Robe

7

W. Sweet
U.S.D.J.