Schoolcraft v. The City Of New York et al

Filing 105

STIPULATION AND PROTECTIVE ORDER AS TO DOCUMENTS PRODUCED BY CITY DEFENDANTS: regarding procedures to be followed that shall govern the handling of confidential material. SO ORDERED. (Signed by Judge Robert W. Sweet on 10/04/2012) (ama)

UNITED STATES DISTRlCT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRlAN SCHOOLCRAFT,
Plaintiff,
-againstTHE CITY OF NEW YORK, DEPUTY CHIEF
MICHAEL MARINO, Tax Id. 873220, Individually
and in his Official Capacity, ASSISTANT CHIEF
PATROL BOROUGH BROOKLYN NORTH
GERALD NELSON, Tax Id. 912370, Individually
and in his Official Capacity, DEPUTY INSPECTOR
STEVEN MAURIELLO,
Tax Jd. 895117,
lndlvidually and in his Official Capacity , CAPTAIN
THEORDORE LAUTERBORN, Tax Id. 897840,
Individually and in his Official Capacity,
LIEUTENANT JOSEPH GOFF, Tax Id. 894025,
Individually and in his Official Capacity, SGT.
FREDERlCK SAWYER, Shield No. 2576,
lndividually and in his Official Capacity,
SERGEANT KURT DUNCAN, Shield No. 2483,
Individually and in his Official Capacity,
LIEUTENANT CHRISTOPHER BROSCHART,
Tax Id. 915354, Individually and in his Official
Capacity, LIEUTENANT TIMOTHY CAUGHY, Tax
ld. 885374, Individually and in his Official Capacity,
SERGEANT SHANTEL JAMES, Shield No. 3004
and P.O.'s "JOHN DOE" #1-50, Individually and in
their Official Capacity (the name John Doe being
fictitious, as the true names are presently unknown)
(collectively referred to as "NYPD defendants"),
JAMAICA HOSPITAL MEDICAL CENTER, DR.
ISAK ISAKOV, Individually and in his Official
Capacity, DR. LILIAN ALDANA-BERNIER,
Individually and in his Official Capacity and
JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEE'S "JOHN DOE" # 1-50, Individually
and in their Official Capacity (the name John Doe
being fictitious, as the true names are presently
unknown),
Defendants.
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STIPULATION AND

PROTECTIVE ORDER

AS TO DOCUMENTS

PRODUCED BY CITY

DEFENDANTS

10 CV 06005 (RWS)

II USDCSDNY

ilDOCUMENT

ELECTRONICALLY FILED

It

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WHEREAS, plaintiff seeks certain documents from defendants the City of New
York, and NYPD defendants Deputy Chief Michael Marino, Assistant Chief Gerald Nelson,
Captain Theordore Lauterborn, Lieutenant Joseph Goff, Sgt. Frederick Sawyer, Sergeant Kurt
Duncan, Lieutenant Christopher Broschart, Sergeant Shantel James, (collectively referred to
herein as "City Defendants") and Deputy Inspector Steven Mauriello in discovery in this action,
documents which City Defendants deem confidential, and
WHEREAS, City Defendants object to the production of those documents unless
appropriate protection for their confidentiality is assured,
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by
and between the attorneys for plaintiff, the City Defendants, Deputy Inspector Steven Mauriello,
and Jamaica Hospital Medical Center, Dr. Isak Isakov, and Dr. Lilian Aldana-Bernier
(collectively referred to herein as "Co-Defendants") as follows:
1.

As used herein, "Confidential Materials" shall mean all documents and the

information contained therein as to which a party believes good cause under Fed. R. Civ. P. 26(c)
exists for limiting public access. Subject to any challenge that may be brought under this order,
defendants shall designate as "Confidential Materials" all documents and the information
contained therein relating to personnel of the New York City Police Department ("NYPD"),
other than plaintiff in this action, except where otherwise specified in subsection (a), including,
but not limited to, (a) files maintained by the NYPD's Internal Affairs Bureau ("lAB") and
Brooklyn North Investigations Unit ("BNIU") with respect to any investigation into alleged
misconduct by any member of the New York City Police Department, including but not limited
to plaintiff; (b) files maintained by the NYPD's Quality Assurance Division ("QAD") with

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respect to any investigation, including but not limited to plaintiff; (c) internal and external Equal
Employment Opportunity complaints and any related investigation; (d) personnel files and the
information contained therein including, but not limited to, information regarding, promotions,
discipline, evaluations; (e) copies of any documents containing information about any actual or
potential personnel action taken with respect to personnel of NYPD other than plaintiff in this
action, including, but not limited to, copies of investigation files, disciplinary files, Employee
Management Division ("EMD") files; (f) any documents identified by City defendants as subject
to this order; (g) any documents that the Court directs to be produced subject to this order; and
(h) any testimony concerning subsection (a), (b), (c), (d), (e), (f), and (g) and documents and the
information contained therein.
2.

Documents and information are not Confidential Materials if they are

obtained in anyone of the following ways: (a) properly obtained by plaintiff from third parties;
(b) obtained from the City without "Confidential Materials" designation; or (c) are otherwise
publicly available.
3.

The defendants shall designate in good faith particular documents

"Confidential Materials" by labeling such documents "Confidential Materials" and/or by
designating such documents by Bates Number in a writing directed to plaintiffs counsel. The
City Defendants shall have a reasonable time to inspect and designate as "Confidential
Materials" documents sought by subpoena from third parties that are represented by the Office of
Corporation Counsel of the City of New York, and such documents, if produced to plaintiff, shall

be treated as "Confidential Materials" during such reasonable period. The defendants reserve the
right to designate any documents "Confidential Materials" pursuant to this agreement if
necessary after production of such documents to the plaintiff.

3

If plaintiff objects to the

designation of particular documents as

"Confidential Materials" plaintiff shall state such

objection in writing to the defendants within 60 days of receipt, and the parties shall endeavor in
good faith to resolve such objection. If such objection cannot be resolved, then the plaintiff shall
move for an order approving such designation.
4.

Neither plaintiff, plaintiffs attorney, nor the Co-Defendants or their

attorneys in this matter shall use the Confidential Materials for any purpose other than for the
preparation or presentation of plaintiffs case or defendants' defense in this action. In addition,
any party may use the Confidential Materials for cross-examination or impeachment purposes,
and Confidential Materials may be used in support of, or opposition to, any summary judgment
motions, provided that the Confidential Materials are appropriately redacted for ECF filing,
pursuant to the provisions of paragraph 6, infra. To the extent that confidential records are used
by either side in the trial of this action such records shall no longer be deemed confidential under
the tenns of this agreement and maybe used by any party without restriction. A party intending
to use any confidential records at trial shall provide prior notice of intent to use the confidential
records to all other parties, and provide the all other parties the opportunity to address the Court
regarding whether documents should be excluded from evidence or admitted only in redacted
fonn.
5.

Neither plaintiff, plaintiffs attorney, nor the Co-Defendants or their

attorneys in this matter shall disclose the Confidential Materials to any person except under the
following conditions:

a.

Disclosure of Confidential Materials, including, but not limited to those
files maintained by the NYPD's lAB, BNIU, QAD, or Office of Equal
Employment Opportunity with respect to any investigation into alleged

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misconduct, including but not limited to plaintiff, and any EMD,
personnel, investigative, and/or disciplinary files and/or materials may be
made only to plaintiffs and/or Co-Defendants' attorneys or a person(s)
specifically employed by plaintiffs and/or Co-Defendants' attorneys only
if necessary to the preparation or presentation of plaintiffs and/or Co­
Defendants' case in this action.
b.

Disclosure before trial of Confidential Materials may be made only to an
expert who has been retained or specially employed by plaintiffs and/or
Co-Defendants attorneys in anticipation of litigation or preparation for this
action, to a witness at deposition, or to the Court.

c.

Before any disclosure is made to a person listed in subparagraph (a) or (b)
above (other than to the Court), plaintiff and Co-Defendants shall provide
each such person with a copy of this Stipulation and Protective Order, and
such person shall consent in writing, in the fonn annexed hereto as Exhibit
A, not to use the Confidential Materials for any purpose other than in
connection with the prosecution or defense of this case and not to further
disclose the Confidential Materials except in testimony taken in this case,
or attached to motions, affidavits or declarations submitted to the Court,
which have been redacted for ECF filing pursuant to the provisions of
paragraph 6, infra. The signed consent shall be retained by plaintiff's
attorney and/or Co-Defendants' attorneys and a copy shall be furnished
upon written request to City Defendants' attorney within ten (10) days.

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6.

Deposition testimony concerning any Confidential Materials which

reveals the contents of such materials shall be deemed confidential, and the transcript of such
testimony, together with any exhibits referred to therein, shall be separately bound, with a cover
page prominently marked "CONFIDENTIAL." Such portion of the transcript shall be deemed to
be Confidential Materials within the meaning of this Stipulation and Protective Order.
7.

If any paper which incorporates any Confidential Materials or reveals the

contents thereof is filed in this Court, those portions of the papers shall be delivered to the Court
enclosed in a sealed envelope bearing the caption of this action, an indication of the nature of the
contents, and the following legend:

CONFIDENTIAL
This envelope contains documents or information
designated confidential pursuant to an order entered
by the United States District Court for the Southern
District of New York in the above-captioned action.
This envelope shall not be opened or unsealed
without the express direction of a judge of this
Court, and its contents shall not be displayed or
revealed except as the Court may order. This
envelope and its contents shall at all times be
maintained separate and apart from the publicly
available files of this case.
8.

Should the City Defendant's produce any Confidentional Materials that

have portions redacted for privilege grounds, such documents or materials shall be accompanied
by a log describing the contents of the redacted portions and the grounds on which the City
Defendants are redacting such portions of the materials so that the parties can properly raise
objections to said redactions with the City Defendants. If such objection cannot be resolved
without the Court's involvement, then any party may move for an order removing such
redactions.

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9.

With the exception of any documents or deposition testimony which are

used during the trial of this action or otherwise no longer deemed Confidential Materials by the
Court, as authorized in this agreement, the parties agree that within thirty (30) days after the
termination of this case (including any appeals) or upon written request of the City Defendants,
whichever is later, the Confidential Materials, including all copies, notes, and other materials
containing or referring to information derived lherefrom, shall be returned to City defendants'
attorney or, upon their written consent, destroyed, and all persons who possessed such materials
shall verify their return or destruction by affidavit or certification furnished to City defendants'
attorney; plaintiffs and Co-Defendants' attorneys shall represent that all Confidential Materials
have been returned; provided that notes and other materials that are or contain the work product
of attorneys may be retained. However, any such retained work product shall remain subject to
the provisions in this Order and shall not be used by plaintiffs counsel and/or Co-Defendants'
counsel in any other case against the City of New York, it agencies or its employees and the
same shall be verified to City defendants' attorney.
10.

Nothing in this Stipulation and Protective Order shall prevent plaintiffs

counsel from making an application to the Court in the matter of Stinson, et al. v. City of New
York, et at., lO-Civ,-4228 (RWS), or any other matter against the City of New York, for
disclosure of materials that would otherwise be subject to this Protective Order.
II.

Nothing in this Stipulation and Protective Order shall be construed to limit

City defendants' use of the Confidential Materials in any manner.

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12.
Dated:

Facsimile signatures herein shall be consider as original signatures.

September 19,2012
New York, New York

COHEN &FfrCH~LLP ---.
Gerald Cohen (GC0414)
Joshua Fitch (JF2813)

Attorneys for Plc.intiff
233 Broadway, Suite 1800
New York, NY 10279
374~9115
gl~(Jhcll®cohentitch.com

(212)

jtitch cohenfilch.com

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MARTIN, CLEARWATER
& BELL, LLP

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Assistant Corporation Counsel

MICP.AEL CARDOZO

Office of the Corporation Counsel

ofthc City of New York

Attorney for CITY DEFENDANTS

Attorneys for Defendant
JAMAICA HOSPITAL
220 East 42nd Street
New York, NY 10007

100 Church Street, Room 3·200

New York, NY 10017

[phone]
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CALLAN, KOSTER, BRAnV & BRENNAN, LLP
Attorneys for Defendant
DR. LILIAN ALDANA-BERNIER
1 Whitehall Street
New York, NY 10004-2140
(212) 249·0115

[e-mail]

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Wlilter A. Kr¢tz, Jr.'

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SCOPPETIA SEIPP KH.ETZ & ABERCROMBlE
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Attorney for Defendant Steven Mlluriello
444 Madison Avenue, 30th Floor
New York, NY 10022

wakretz@Seii'tkretz,oom

8

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[VONE. DEVINE & JENSEN, LLP
Attorneys for Defendant
ISAK ISAKOV, M.D.
2001 Marcus Avenue, Suite NIQO
Lake Success, New York 11042
(516) 326·2400
[e-mail]

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