Schoolcraft v. The City Of New York et al
Filing
136
MEMORANDUM OF LAW in Support re: 135 MOTION to Quash Subpoena on Queens DA Richard Brown of Queens District Attorney Richard Brown.. Document filed by The City Of New York. (Publicker, Suzanna)
10-CV-6005 (RWS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ADRIAN SCHOOLCRAFT,
Plaintiff,
-againstTHE CITY OF NEW YORK, et al.,
Defendants.
NON-PARTY QUEENS DISTRICT ATTORNEY
RICHARD BROWN’S MEMORANDUM OF LAW
IN SUPPORT OF THEIR MOTION TO QUASH
PLAINTIFF’S SUBPOENA PURSUANT TO
RULES 26 AND 45 OF THE FEDERAL RULES OF
CIVIL PROCEDURE
MICHAEL A. CARDOZO
Corporation Counsel of the City of New York
Attorney for City Defendants and Non-Party
Queens District Attorney Richard Brown
100 Church Street
New York, N.Y. 10007
Of Counsel: Suzanna Publicker
Tel: (212) 788-1103
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF AUTHORITY .................................................................................................. 1
STATEMENT OF FACTS AND PROCEDURAL HISTORY...................................................... 2
STANDING .................................................................................................................................... 4
A.
Defense Counsel Represents the Non-Party Target of
Plaintiff’s Subpoena...........................................................................................4
B.
A Non-Party Witness Has Standing to Object to a
Subpoena Directed at Him. ................................................................................4
ARGUMENT
A.
Plaintiff Failed To Provide Proper Notice Under Fed. R.
Civ. P. 45............................................................................................................5
B.
The Subpoena’s Request for Investigative Documents
Is Moot. ..............................................................................................................6
C.
The Deposition of the Queens DA Richard Brown Is
Outside The Scope Of Fed. R. Civ. P. 26 and Is
Unwarranted.......................................................................................................7
CONCLUSION............................................................................................................................. 10
TABLE OF AUTHORITIES
Cases
Pages
Capitol Vending Co. v. Baker,
36 F.R.D. 45 (D.D.C. 1964)........................................................................................................ 9
Church of Scientology v. I.R.S.,
138 F.R.D. 9 (D. Mass. 1990)..................................................................................................... 9
Cootes Drive L.L.C. v. Internet Law Library, Inc.,
01 Civ. 0877 (RLC), 2002 U.S. Dist. LEXIS 4529 (S.D.N.Y. March 18, 2002) ................... 5, 6
Crosby v. City of New York,
269 F.R.D. 267 09 Civ. 9693 (SAS), 09 Civ. 9694 (SAS),
09 Civ. 9695 (SAS) (S.D.N.Y. 2010) ..................................................................................... 4, 5
Estate of Ungar v. Palestinian Auth.,
18 M 302 (CM), 451 F. Supp. 2d 607 (S.D.N.Y. 2006) ............................................................. 5
Kingsway Fin. Serv., Inc. v. Price water house-Coopers,
LLP, No. 03 Civ. 5560, 2008 U.S. Dist. LEXIS 77018 (S.D.N.Y. Oct. 2, 2008) ...................... 4
Kirschner v. Klemons,
99 Civ. 4828 (RCC), 2005 U.S. Dist. LEXIS 9803 (S.D.N.Y. May 18, 2005) .......................... 5
Koch v. Greenberg,
2009 U.S. Dist. LEXIS 61913, 07 Civ. 9600 (BSJ)(DF) (S.D.N.Y. July 14, 2009) .................. 4
Marisol A. v. Giuliani,
95 Civ. 10533 (RJW), 1998 U.S. Dist. LEXIS 3719 (S.D.N.Y. March 23, 1998) ................. 8, 9
Night Hawk Ltd. v. Briarpatch Ltd., LP,
No. 03 Civ. 1382, 2003 U.S. Dist. LEXIS 23179 (S.D.N.Y. Dec. 23, 2003)............................. 4
Salvatore Studios Int'l v. Mako's Inc.,
No. 01 Civ. 4430, 2001 U.S. Dist. LEXIS 11729 (S.D.N.Y. Aug. 14, 2001) ......................... 4-5
Schweizer v. Mulvehill,
93 F. Supp. 2d 376 (S.D.N.Y. 2000)........................................................................................... 5
Statutes
42 U.S.C. § 1983............................................................................................................................. 2
42 U.S.C. § 1988............................................................................................................................. 2
Fed. R. Civ. P. 26............................................................................................................ 1, 3, 4, 5, 7
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Statutes
Pages
Fed. R. 26(b)(2)(C) ......................................................................................................................... 1
Fed. R. Civ. P. 26(b)(2)(C)(i-iii)..................................................................................................... 1
Fed. R. Civ. P. 26(c) ..................................................................................................................... 10
Fed. R. Civ. P. 45................................................................................................................ 1, 3, 4, 5
Fed. R. Civ. P. 45(b)(1)........................................................................................................... 1, 5, 6
Fed. R. Civ. P.45(c) ........................................................................................................................ 5
Fed. R. Civ. P. 45(c)(1)................................................................................................................... 2
Fed. R. Civ. P. 45(c)(3)(A) ............................................................................................................. 2
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PRELIMINARY STATEMENT
City Defendants, joined by non-party Queens District Attorney Richard Brown
(hereinafter “Queens DA”), respectfully move this Court, pursuant to Rules 26 and 45 of the
Federal Rules of Civil Procedure, to quash plaintiff’s subpoena dated March 1, 2013 seeking the
deposition testimony of Queens District Attorney Richard Brown on March 18, 2013 and further
seeking “[a]ll documents pertaining to the investigation of criminal behavior concerning the
entry into and removal of Adrian Schoolcraft from his home on October 31, 2009, as reflected in
the attached Statement by District Attorney Richard A. Brown, dated December 4, 2012”.
Subpoena dated March 1, 2013, annexed to Declaration of Suzanna Publicker dated March 14,
2013 (“Publicker Decl.”) as Exhibit “A.” For the reasons set forth herein, City Defendants and
non-party Queens DA respectfully request that the above-mentioned subpoena be quashed and a
protective order should be issued.
STATEMENT OF AUTHORITY
Fed. R. Civ. P. provides in relevant part: “Parties may obtain discovery regarding
any non-privileged matter that is relevant to any party’s claim or defense. . . All discovery is
subject to the limitations imposed by Rule 26(b)(2)(C).” The Court, on motion or on its own,
must limit the extent of discovery when “the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that is more convenient, less
burdensome, or less expensive . . . when the party seeking discovery has had ample opportunity
to obtain the information by discovery in the action . . . [or] the burden or expense of the
proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C)(i-iii).
Fed. R. Civ. P. 45 provides in relevant part: “If the subpoena commands the
production of documents . . . then before it is served, a notice must be served on each party.”
Fed. R. Civ. P. 45(b)(1). Also, “[A] party or attorney responsible for issuing and serving a
subpoena must take reasonable steps to avoid imposing undue burden or expense on a person
subject to the subpoena . . . The issuing Court must enforce this duty and impose as appropriate
sanction . . . on a party or attorney who fails to comply.” Fed. R. Civ. P. 45(c)(1). The Court, on
timely motion, must quash or modify a subpoena that: “fails to allow reasonable time to comply .
. . requires disclosure of privileged or other protected matter, if no exception or waiver applies . .
. [or] subjects a person to undue burden.” Fed. R. Civ. P. 45(c)(3)(A).
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Plaintiff, a police officer with the New York City Police Department (“NYPD”),
brought this action on August 10, 2010, pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988 for
violations of his Fourth and Fourteenth Amendment rights, and under New York State tort law
against the City Defendants, ten (10) individually-named members of the NYPD, Jamaica
Hospital, and two (2) individually named Jamaica Hospital defendants. Plaintiff filed an
Amended Complaint on September 13, 2010, as of right against all parties, and a Second
Amended Complaint on October 3, 2012, naming multiple new parties and adding a First
Amendment Prior Restraint Claim following motion practice. Second Amended Complaint dated
October 3, 2012, filed with the United States District Court, Southern District of New York (“2nd
Am. Compl.”), annexed to Publicker Decl. as Exhibit “B.”
On the afternoon of March 1, 2013, City Defendants were directed to a newspaper
article in the Village Voice that, to our surprise, indicated that plaintiff’s counsel had that day
served a subpoena on the Queens County District Attorney Richard Brown (“Queens DA”).
Graham Rayman, Lawyers for Whistleblower Cop Slap Queens District Attorney Richard Brown
With A Subpoena, Village Voice, Mar. 1, 2013, annexed to Publicker Decl. as Exhibit “C.”
Plaintiff had not provided City Defendants with prior notice of the subpoena, nor, indeed, ever
contacted City Defendants about the subject of said subpoena. Regardless, that very same day,
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the Queens DA’s office confirmed that it had been served with a subpoena demanding the
appearance of the Queens DA for a deposition beginning on Monday, March 18, 2013, as well as
“[a]ll documents pertaining to the investigation of criminal behavior concerning the entry into
and removal of Adrian Schoolcraft from his home on October 31, 2009, as reflected in the
attached Statement by District Attorney Richard A. Brown, dated December 4, 2012.” Publicker
Decl., Exhibit “B.” On Monday, March 4, 2013, and in an effort to confer in good faith prior to
engaging in extensive motion practice, City Defendants contacted plaintiff’s counsel via fax and
email, informed counsel that they had not received proper notice of the subpoena pursuant to
Fed. R. Civ. P. 45,1 and further outlined the reasons why the subpoena was defective and should
be withdrawn. Correspondence dated March 4, 2013, annexed to Publicker Decl. as Exhibit “D.”
Nevertheless, plaintiff refused to withdraw the March 1, 2013 subpoena.
In sum, the subpoena issued by plaintiff on the Queens DA should be quashed and
the information sought therein denied because: (1) plaintiff failed to comply with Fed. R. Civ. P.
45 in serving the subpoena on the Queens DA, (2) the subpoena duces tecum is moot because
plaintiff will be receiving the documents in the course of discovery, (3) the deposition of the
Queens DA is outside the scope of Fed. R. Civ. P. 26 as it seeks information that is irrelevant to
plaintiff’s claims in this matter, and (4) even assuming the information sought is relevant, the
Queens DA himself, a high ranking official, should not be deposed because he cannot provide
unique information that is not otherwise available and any deposition would interfere with his
ability to perform his governmental duties.
1
City Defendants eventually received the subpoena by mail on Tuesday, March 5th. The
postmark indicated that it had been mailed some time on Thursday, February 28th, the day before
plaintiff served his subpoena on the Queens DA.
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STANDING
A.
Defense Counsel Represents the Non-Party Target of Plaintiff’s Subpoena.
As the undersigned informed plaintiff’s counsel following the service of the
subpoena, the Office of the Corporation Counsel would be moving on behalf of the Queens DA
to quash the subpoena. Publicker Decl., Exhibit “D.” Moreover, this office has assumed
representation of the Queens DA for the purpose of any deposition.
B.
A Non-Party Witness Has Standing to Object to a Subpoena Directed at Him.
While a party does not generally have standing to object to a subpoena directed at
a non-party witness, subpoenaed non-parties do have standing to challenge a subpoena directed
at them. See, e.g., Crosby v. City of New York, 269 F.R.D. 267, 09 Civ. 9693 (SAS),09 Civ.
9694 (SAS),09 Civ. 9695 (SAS) (S.D.N.Y. 2010) (non-party District Attorney of New York
found to have standing to challenge relevance of subpoena directed at it); Koch v. Greenberg,
2009 U.S. Dist. LEXIS 61913, 07 Civ. 9600 (BSJ)(DF) (S.D.N.Y. July 14, 2009) (non-party
Christie’s Auction House found to have standing to move to quash subpoenas directed at it by
plaintiff). Further, it is well-established fact that a non-party who is served with a subpoena still
maintains an objection to the subpoena on the grounds that the information sought is irrelevant
under Fed. R. Civ. P. 26 and that the subpoena failed to comply with Fed. R. Civ. P. 45.
“Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery from
parties and non-parties alike.” Crosby v. City of New York, 269 F.R.D. 267, 282 (S.D.N.Y.
2010) (emphasis added) (citing Kingsway Fin. Serv., Inc. v. Price water house-Coopers, LLP,
No. 03 Civ. 5560, 2008 U.S. Dist. LEXIS 77018, at *4-*6 (S.D.N.Y. Oct. 2, 2008); Night Hawk
Ltd. v. Briarpatch Ltd., LP, No. 03 Civ. 1382, 2003 U.S. Dist. LEXIS 23179, at *8 (S.D.N.Y.
Dec. 23, 2003); Salvatore Studios Int'l v. Mako's Inc., No. 01 Civ. 4430, 2001 U.S. Dist. LEXIS
11729, at *1 (S.D.N.Y. Aug. 14, 2001)). A non-party subpoenaed for testimony or documents
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may object to a subpoena directed at them based on a challenge to relevance under Rule 26 or
failure to comport with procedure under Rule 45. See Crosby, 269 F.R.D. 267 (non-party
standing to object based on Rule 26); Estate of Ungar v. Palestinian Auth., 18 M 302 (CM), 451
F. Supp. 2d 607 (S.D.N.Y. 2006) (non-party standing to object based on Rule 45(e)); Kirschner
v. Klemons, 99 Civ. 4828 (RCC), 2005 U.S. Dist. LEXIS 9803 (S.D.N.Y. May 18, 2005) (nonparty standing to object based on Fed. R. Civ. P.45(c)).
As stated above, this Office represents the Queens DA and, as the target of
plaintiff’s improper subpoena, Mr. Brown may challenge the subpoena on the grounds of
relevance and any procedural defect. The fact that the Office of Corporation Counsel represents
both the Queens DA, for the purposes of this motion, and City Defendants generally, does not
impair its ability to move to quash the subpoena.
ARGUMENT
A.
Plaintiff Failed To Provide Proper Notice Under Fed. R. Civ. P. 45.
Plaintiff failed to provide prior notice of these subpoenas as required under Fed.
R. Civ. P. 45(b)(1). See, e.g., Cootes Drive L.L.C. v. Internet Law Library, Inc., 01 Civ. 0877
(RLC), 2002 U.S. Dist. LEXIS 4529, *2-*3 (S.D.N.Y. March 18, 2002) (failure to provide notice
of subpoenas to counsel for all parties until day after subpoenas were served is a “manifest
violation of Rule 45”); Schweizer v. Mulvehill, 93 F. Supp. 2d 376, 411 (S.D.N.Y. 2000) (“The
requirement of prior notice has been interpreted to require that notice be given prior to the
issuance of the subpoena, not prior to its return date.”) (internal citations omitted).
“The
requirement that prior notice must be given has important underpinnings of fairness and
efficiency. . . , “[t]he purpose of such notice is to afford other parties an opportunity to object to
the production or inspection, or to serve a demand for additional documents or things . . . “
Cootes Drive, at *4; Advisory Committee note to 1991 Amendment, subdivision(b).
-5-
The subpoena at issue in this case, directed to the Queens DA, was served upon
said individuals by hand on March 1, 2013. Though plaintiff’s counsel apparently mailed a copy
of the subpoena to defense counsel on February 28, 2013, plaintiff’s counsel was well aware that
by mailing the document the day prior, defense counsel would not receive actual notice of the
subpoena before it was served on the Queens DA. As such, plaintiff’s counsel did not provide
proper prior notice of the subpoena before it was served, as he is required to do by Fed. R. Civ.
P. 45(b)(1). For this reason alone, plaintiff’s subpoena should be quashed.
B.
The Subpoena’s Request for Investigative Documents Is Moot.
Plaintiff originally requested the Queens DA investigative file from City
Defendants in February 2012 as part of Plaintiff’s Second Set of Document Requests. At that
time, the Queens DA criminal investigation was ongoing, and City Defendants objected to the
production of the file on the basis of privilege in their Responses and Objections to Plaintiff’s
Second Set of Document Requests.2 The Queens DA investigation was completed in December
2012, resulting in a finding of no criminality on the part of any members of the NYPD. After
learning that the Queens DA investigation had closed, City Defendants requested the file from
the Queens DA, and informed plaintiff that the non-privileged portions of the file would be
produced to plaintiff in the course of regular discovery.3,4 For this reason alone, and because
2
Defendants note that plaintiff had other remedies available to him other than burdening the
Queens DA and this office with the service of a subpoena. Plaintiff could have filed a motion
with this Court (after conferring with defendants, of course) to compel production of the
investigative file. Plaintiff, however, chose not to do so.
3
City Defendants note that though plaintiff’s subpoena has demanded these records be produced
by March 15, 2013, City Defendants have informed plaintiff’s counsel that it will take
approximately a month for the Queens DA to (1) review their file for privilege, (2) create a
privilege log, (3) copy the investigative file, and (4) produce the requested records to this office.
This office will thereafter undertake its own review and produce any relevant non-privileged
documents to plaintiff.
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plaintiff will receive the requested documents in the ordinary course, there is no need for the
subpoena and it should be quashed.
C.
The Deposition of the Queens DA Richard Brown Is Outside The Scope Of Fed. R.
Civ. P. 26 and Is Unwarranted.
The deposition of DA Richard Brown would not yield information that is relevant
to plaintiff’s lawsuit. Plaintiff alleges that on October 31, 2009, he was taken from his home and
brought to Jamaica Hospital Medical Center against his will in violation of the Fourth
Amendment. Plaintiff also alleges claims pursuant to the First Amendment in connection with
his allegation that he was retaliated against by the NYPD for being a “whistle blower.” In
connection with the aforementioned incident, plaintiff was not prosecuted by the Queens DA,
and has no claims whatsoever against the Queens DA himself or any employees thereof. See 2nd
Am. Compl., Publicker Decl. Exh. “B.” The Queens DA investigated the allegations of plaintiff
well after the alleged incident occurred solely for the purposes of determining whether there was
any criminal misconduct – not whether there were any Fourth and/or First Amendment
violations. Therefore, Mr. Brown’s deposition will not inform whether or not there was probable
cause on October 31, 2009, to take Schoolcraft to Jamaica Hospital as an Emotionally Disturbed
Person in need of medical assistance or whether the NYPD retaliated against plaintiff for his
alleged “whistle blowing.” Upon information and belief, neither the Queens DA nor any of his
employees have any personal knowledge of any of the circumstances underlying the facts alleged
by plaintiff in the Second Amended Complaint. The deposition of the Queens DA is therefore
4
Moreover, upon information and belief, because plaintiff has been given the Internal Affairs
Bureau (“IAB”) investigative file into the incidents on October 31, 2009, and much of that file is
duplicative of the Queens DA file, plaintiff is already in possession of a great number of
documents sought from the Queens DA. For example, both investigative files contain plaintiff’s
medical records, and many witnesses were interviewed jointly by the Queens DA and the IAB
and plaintiff has been provided recordings of those interviews.
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irrelevant to plaintiff’s claims in this matter, and as a high ranking government official, his
deposition is further prohibited by existing case law.
Depositions of high-level government officials are only allowed if: “1) the
deposition is necessary in order to obtain relevant information that cannot be obtained from any
other source, and 2) the deposition would not significantly interfere with the ability of the official
to perform his governmental duties.” Marisol A. v. Giuliani, 95 Civ. 10533 (RJW), 1998 U.S.
Dist. LEXIS 3719, at *6-*7 (S.D.N.Y. March 23, 1998). When applying the first prong, courts
only permit the deposition of a high ranking government official if he has unique personal
knowledge that cannot be obtained elsewhere. Marisol A., at *8. As plaintiff was informed on
March 5, 2013, upon information and belief, Queens District Attorney Richard Brown has no
such unique knowledge since he was neither present during the events alleged in plaintiff’s
complaint, he was not present for the interviews conducted as part of the investigatory process,
nor was he personally involved in the investigation of plaintiff’s claims by the Queens DA’s
office. Therefore any deposition of the Queens DA would be wholly irrelevant and intended
only to harass.5
Moreover, turning to the second prong outlined by Marisol A., if the Queens DA
were ordered to sit for a deposition in this case, it would significantly interfere with his ability to
perform his governmental duties in both the long and short term. As the Court in Marisol A.
explained, “[i]f the head of a government agency were subject to having his deposition taken
concerning any litigation affecting his agency . . ., we would find that the heads of government
departments and members of the President's Cabinet would be spending their time giving
depositions and would have no opportunity to perform their functions.” Marisol A., at *10 (citing
5
City Defendants attach as Exhibit “C” to the Publicker Declaration public statements by
plaintiff’s counsel regarding their displeasure with the conclusions reached by the Queens DA.
-8-
Capitol Vending Co. v. Baker, 36 F.R.D. 45, 46 (D.D.C. 1964); Church of Scientology v. I.R.S.,
138 F.R.D. 9, 12 (D. Mass. 1990)). In order to comply with the subpoena in this case, the Queens
DA would be required to neglect his myriad duties as a high ranking public official in order to
prepare for, and sit through an unnecessary deposition. In a case such as this, where neither the
Queens DA nor members of his office have been named as a party to the action, and where Mr.
Brown has no independent relevant knowledge, it would surely be burden to require him to
forego his governmental duties in order to prepare and sit for a deposition for which plaintiff’s
have not even established a good faith basis for conducting.
Therefore, plaintiff’s subpoena should be quashed and the information sought
therein denied.
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CONCLUSION
For the foregoing reasons, non-party Queens DA respectfully requests that the
Court issue an Order quashing plaintiff s subpoena, issue a Protective Orcler under Fed. R. Civ,
P,26(c),,precluding the deposition of the Queens District Attorney Richard Brown on the
grounds that the Queens DA has no relevant information and plaintiff has not demonstrated that
he has unique inf'ormation that cannot be obtained from another source, and for fuither relief as
the Court may deem just and proper.
Dated:
New York, New York
March 14,2013
MICHAEL A. CARDOZO
Corporation Counsel of the
City of New York
Attorney for Non-Party Queens DA
100 Church Street, Room 3-200
New York, New York 10007
(21
By
SU
PUBLICKER
Assistant Corporation Counsel
Special Federal Litigation Division
cc
Nathaniel Smitkr (By ECF & First-Class Mail)
Richard Gilbert (By ECF)
Peter J. Gleason (By ECF)
Attorneys þr Plaintiff
Gregory John Radomisli (By ECF & First-Class Mail)
MRRrn Ci,eRnwRrER & BELL LLP
Attorneys ./òr Jamaica Hospital Medical Center
Brian Lee (By ECF'& First-Class Mail)
IVONE, DEVINE & JENSEN, LLP
,4ttorneys for Dr. Isak Isakov
Bruce M, Brady (By ECF & First-Class Mail)
CALLAN, KOSTER, BRADY & BRENNAN, LLP
Attorney,s for Lillian Al dana-Bernier
Walter Aoysius Kretz, Jr, (By ECF & First-Class Mail)
SEIFF KRETZ & ABERCROMBIE
A t t o r ney,þ r D efe ndant Maur ie l lo
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