Stinson et al v. The City of New York

Filing 173

OPINION: For the reasons set forth above, Plaintiffs are directed to return all copies of the Documents to Defendants. Plaintiffs may, however, rely on any material learned prior to the Defendants' September 16 Letter in challenging Defendants&# 039; assertion of privilege. Plaintiffs' opposition to Defendants' assertion of privilege dated October 8, 2014, must be served by Friday, October 17, 2014. Defendants' response, if any, must be served by Tuesday, October 21, 2014. The parties will be heard on Defendants' assertion of privilege on October 22, 2014 in Courtroom 18C, United States Courthouse, 500 Pearl Street. It is so ordered. (Signed by Judge Robert W. Sweet on 10/10/2014) (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 R A N C E S:
Attorneys for the Plaintiffs
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.

FILED

Sweet, D.J.

Defendants City of New York and Raymond Kelly, the
Commissioner of the New York Police Department

("NYPD," together

with the City of New York, "Defendants") have moved by order to
show cause to compel plaintiffs Sharif Stinson, Mariam Farnum,
Charlene Finley, Ryburn Walkes, Jamel Towe, Christian Dudley,
Jocelyn Ferdinand, Gary Shaw, Michael Bennett, Chanel Meausa,
David Thompson, Joseph Sarpong, Jeremy Thames, Sean Pettigrew,
Leander Griffin, Brian Morris, Mica Ancrum, Ricardo Jones,
Victor Breland, and Michael Riddick (collectively, "Plaintiffs")
to immediately return the allegedly privileged CD Rom diskette
("CD") consisting of inadvertently disclosed documents produced
by the City, namely, the New York City Police Department
Briefing Book for fiscal year 2013 and Topics of the City
Council Book (the "Documents") and any copies or portions of
copies thereof.

The parties have provided additional briefing

on the question of whether Plaintiffs may retain the Documents
solely for the purpose of litigating the claim of privilege.

Based on the facts and conclusions set forth below,
Plaintiffs are directed to return the Documents and any copies
or copied portions thereof.

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Background and Prior Proceedings

Plaintiffs' second set of document requests

(Request

Numbers 75 through 79) required Defendants to review a large
volume of electronically stored information containing hundreds
of thousands of documents for responsive information.
Defendants produced certain documents on September 2, 2014, the
entirety of which Plaintiffs' counsel promptly reviewed.

As

part of the September 2, 2014 production, two documents were
inadvertently produced - the New York City Police Department
Briefing Book for fiscal year 2013 and Topics Book.

Defendants

produced heavily redacted versions of the Documents at the same
time that the Documents containing allegedly privileged
information were mistakenly produced.

Upon realizing that the unredacted Documents had been
produced, defense counsel advised Plaintiffs by letter on
September 16, 2014

(the "September 16 Letter") that they had

inadvertently disclosed privileged information and invoked the
protections afforded under Rule 2 6 (b) ( 5) ( B) of the Federal Rules
of Civil Procedure and Rule 502(d) of the Federal Rules of
Evidence.

At the same time,

Defendants put Plaintiffs' counsel

on notice that the Documents contained attorney work product,
attorney-client communications, and material that was covered by

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the law enforcement privilege. 1
requested that

(1)

Accordingly, Defendants

Plaintiffs immediately return the CD that the

Documents were produced on, as well as, any and all copies of
the documents Plaintiffs may have made, and (2)

Plaintiffs

destroy any electronically maintained versions of the Documents.

Plaintiffs confirmed that the attorneys working on the
matter had "been instructed that until they are told
differently, they should treat [the documents] as privileged,
and should not review, circulate, or otherwise use the document
for any purpose."

(Defs.' Mem. 2.)

Plaintiffs agreed to return

the original CD Rom diskette and all but one copy of the
Documents, contending that they were allowed to retain a copy of
the Documents in order to review them for privilege.

Defendants filed their order to show cause on
September 22, 2014.

At a hearing on the motion on October 1,

2014, the Court requested briefing on Plaintiffs' contention
that they can properly retain and review the Documents for
purposes of opposing Defendants' privilege claim while directing
Plaintiffs' counsel to sequester the CD.

(See 10/01/2014 Ct.

Tr. at 12:15-19.)

i
Defendants now also contend that the documents are subject to the
deliberative process privilege.

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Applicable Standard

The Court may compel a party to return inadvertently
disclosed documents if it finds that the producing party made
reasonable efforts to screen out privileged documents and did
not intend to produce those that were produced inadvertently.
Fed. R. Civ. P. 26 (b) (5) (B); see also Fuller v.

Interview, Inc.,

No. 07 Civ. 5728, 2009 WL 3241542, *3-5 (S.D.N.Y. Sept. 30,
2009); Synergetics USA,

Inc. v. Alcon Labs.

3669, 2009 WL 2016795, *1-2

Inc., No. 08 Civ.

(S.D.N.Y. July 9, 2009).

Rule 502 of the Federal Rules of Evidence and Rule
26 (b) (5) (B) of the Federal Rules of Civil Procedure reinforce
the protection that extends to privileged documents produced
inadvertently.

Rule 502(b) specifies that production of a

privileged document does not constitute a waiver of the
privilege if the privilege was "inadvertent," the privilege
holder "took reasonable steps to prevent disclosure," and the
privilege holder promptly took reasonable steps to rectify the
error.

Rule 26(b) (5) (B) provides:

If information produced in discovery is
subject to a claim of privilege or of
protection as trial-preparation material,
the party making the claim may notify any
party that received the information of the
claim and the basis for it.
After being

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notified, a party must promptly return,
sequester, or destroy the specified
information and any copies it has; must not
use or disclose the information until the
claim is resolved; must take reasonable
steps to retrieve the information if the
party disclosed it before being notified;
and may promptly present the information to
the court under seal for a determination of
the claim.
The producing party must
preserve the information until the claim is
resolved.

Fed. R. Civ. P. 26 (b) (5) (B).

Rule 25 (b) (5) (B)

requires the

return of information or the presentation to the Court upon a
claim of privilege.

See, e.g.,

Piasa Commer. Interiors, Inc. v.

J.P. Murray Co., No. 07 Civ. 617, 2010 U.S. Dist. LEXIS 27234,

* 6 ( S . D. I 11 . Mar . 2 3, 2010) .

In addition, the New York Rules of Professional
Conduct ("N.Y.C.R.R.")

recognize that lawyers sometimes receive

documents mistakenly produced by opposing parties or their
lawyers.

Where a lawyer knows or reasonably should know that

such a document was sent inadvertently, N.Y.C.R.R. Rule 4.4(b)
requires that the lawyer promptly notify the sender in order to
permit that person to take protective measures.
N.Y.C.R.R. 1200.0 4.4(b).

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See 22

Retention To 0ppose The Claim Of Privilege Is Denied

Defendants contend that the Plaintiffs may not retain
and review the Documents before an adjudication by the Court as
to whether the Documents are,

in fact,

privileged.

Defendants

rely on a 1992 Second Circuit decision, Chase Manhattan Bank,
N.A. v. Turner & Newall,
support their claim.

PLC,

964 F.2d 159

(2d Cir. 1992), to

(See also Defs.' Mem.

3 (collecting

cases).)

However, understandably, the facts in Chase do not
perfectly match those in the instant action.

In Chase, the

defendant had withheld thousands of documents based on,
alia, assertions of attorney-client privilege.

inter

As a means of

resolving these claims, the Magistrate ordered the defendants to
provide the thousands of withheld documents to the plaintiff for
an attorneys'-eyes-only review.

Chase,

964 F.2d at 161-62.

On

appeal, the Second Circuit held that "requiring a litigant to
turn over documents subject to a claim of attorney-client
privilege to opposing counsel, without a judicial ruling on the
merits of the claim, will undermine the attorney-client
privilege" and ordered the plaintiff to cease its review of the
documents.

Id. at 166.

The Second Circuit reasoned that "[i]f

opposing counsel is allowed access to information arguably

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protected by privilege before an adjudication as to whether
privilege applies, a pertinent aspect of confidentiality will be
lost, even though communications later deemed to be privileged
will be inadmissible at trial," and that "attorneys cannot
unlearn what has been disclosed to them in discovery."
165.

Id. at

The Second Circuit in Chase was primarily concerned that

attorneys could not "unlearn what ha[d] been disclosed to them"
and that in disclosing the documents, before an adjudication as
to whether privilege applied, "a pertinent aspect of
confidentiality w[ould] be lost, even though communications
later deemed to be privileged w[ould] be inadmissible at trial."
Id.

Here, the "bell has already been rung" as the
Documents have already been produced to and seen by the
Plaintiffs prior to Defendants' September 16 Letter seeking to
claw back the Documents.

Nevertheless, this distinction in

facts does not in and of itself mandate disclosure - clearly,
Defendants intended to withhold the Documents.

Chase does not

by its own terms limit itself to its particular fact pattern,
but instead articulates baseline principles for the protection
of privileged documents and attorney conduct.

While

considerable damage has arguably already been done, Chase can be
read to counsel judges to mitigate damage to the protections of

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privilege as much as possible, despite the burden it inevitably
places on the lower courts with respect to in camera review.
See, e.g., United States v. Zolin,

491 U.S. 554, 571

(1989)

("we

cannot ignore the burdens in camera review places upon the
district courts, which may well be required to evaluate large
evidentiary records without open adversarial guidance by the
parties").

As such, Chase is properly applied in this case and

the Documents will be returned to the Defendants. 2

Plaintiffs May Use Knowledge Acquired Before The Claw Back

The corollary question presented here, also, is not
only whether the Plaintiffs must return the documents, as it is
apparent that they must under Chase, but whether Plaintiffs may
rely on knowledge gained while reviewing the Documents prior to
the Defendants' September 16 Letter in opposing Defendants'
claim that the Documents are privileged.

There have been instances in this district when
parties who have reviewed inadvertently disclosed documents

It is worth noting that neither Chase nor the various rules cited herein
prevent parties from reaching agreements regarding how inadvertently
disclosed documents may be treated by the non-disclosing party, including
agreements allowing the non-disclosing party to retain and use the materials
in question for the purposes of litigating the claim of privilege.
See,
~, Fox News _Network, LLC v. TVEYES, Inc., No. 13 Civ. 5315, Dkt. No. 16.
Such an agreement, however, is not present in this case.
2

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before claw back have relied on what they have learned prior to
notification for purposes of challenging the asserted claim of
privilege.

For example, in Synergetics, the defendant had

requested that plaintiff return thirty-five pages of documents
because they had been inadvertently produced and were protected,
inter alia, by attorney-client privilege.
2016795, at *l.

Synergetics, 2009 WL

The defendant filed a motion for return of the

inadvertently produced documents.

The plaintiff contested the

issue of whether certain documents were protected by the
attorney-client privilege and made direct reference to the
purportedly privileged documents in its motion papers.
Synergetics, No. 08 Civ. 3669, Dkt. No. 82.

See

Likewise in Graves

v. Deutsche Bank Securities, Inc., No. 07 Civ. 5471, 2011 WL
721558

(S.D.N.Y. Feb. 10, 2011), Magistrate Fox allowed the

objecting party to describe the contents of the purportedly
privileged documents at issue.

See Graves, No. 07 Civ. 5471,

Dkt. No. 84.

Additionally, the Association of the Bar of the City
of New York has found that while lawyers are ethically bound to
return or destroy inadvertently disclosed documents, the nondisclosing lawyer is not ethically barred from using information
gleaned prior to knowing or having reason to know that the
communication contains information not intended for the non-

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disclosing lawyer.

See Assoc. for the Bar of the City of New

York Formal Op. 2003-2004, 2003 WL 23789274, *7-*8

(limiting the

use of information from challenged to documents to information
learned "prior to knowing or having reason to know that the
communicated was misdirected").

As such, while Plaintiffs must

return remaining copies of the Documents, the Plaintiffs may
rely on any information learned prior to notification of the
inadvertent disclosure for the purposes of litigating the
privilege claim.

Separately, Plaintiffs have contended, in the
alternative, that if the Court determines that Plaintiffs'
review of the Documents is not permitted as a matter of course
under Rule 26 (b) (5) (B), the Court may nevertheless permit such a
review as a consequence of Defendants' deficient privilege log
entries, which failed to provide any information concerning the
author(s), addressee(s), and recipient(s) of the Documents or
the relationship of the author(s), addressee(s), and
recipient(s) to each other - all of which are required under
Local Civil Rule 26.2.

Such a position, however, is moot, as

the Court permitted Defendants to remedy any privilege log
Even if that were not the

deficiencies by October 8, 2014.

case, at least one court has in this circuit has held that
deficient privilege log entries are an insufficient basis for

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permitting review of the documents by the opposing party.

See

Davis v. City of New York, No. 10 Civ. 0699, Dkt. Nos. 188 &
191.

Conclusion

For the reasons set forth above,

Plaintiffs are

directed to return all copies of the Documents to Defendants.
Plaintiffs may, however, rely on any material learned prior to
the Defendants' September 16 Letter in challenging Defendants'
assertion of privilege.

Plaintiffs' opposition to Defendants' assertion of
privilege dated October 8, 2014, must be served by Friday,
October 17, 2014.

Defendants' response, if any, must be served

by Tuesday, October 21, 2014.

The parties will be heard on

Defendants' assertion of privilege on October 22, 2014 in
Courtroom 18C, United States Courthouse, 500 Pearl Street.

It is so ordered.

Dated:

New York, New York
October _J___o_, 2014

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