Schoolcraft v. The City Of New York et al
Filing
143
MEMORANDUM OF LAW in Opposition re: 135 MOTION to Quash Subpoena on Queens DA Richard Brown of Queens District Attorney Richard Brown.. Document filed by Adrian Schoolcraft. (Attachments: # 1 Exhibit News Article, # 2 Exhibit News Article)(Smith, Nathaniel)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------X
ADRIAN SCHOOLCRAFT,
Plaintiff,
10-cv-6005 (RWS)
-againstTHE CITY OF NEW YORK, et al,
Defendants.
---------------------------------------------------------X
MEMORANDUM OF LAW IN OPPOSITION TO
MOTION TO QUASH AND COMPEL
LAW OFFICE OF
NATHANIEL B. SMITH
111 Broadway – Suite 1305
New York, New York 10006
(212) 227-7062 (tel)
(212)-346-4665 (fax)
natsmith@att.net
Attorney for Plaintiffs
Dated: March 27, 2013
TABLE OF CONTENTS
Preliminary Statement…………………………………………………….... 1
The Motion to Quash Should Be Denied.…………..……………………… 1
A. The City Defendants Should Not Be Reviewing and Producing
Documents From the Office That Was Charged With Investigating
Them……………………………………………………………….. 4
B. DA Brown Should Be Required To Answer Questions About His
Statement………………………………………………………….. 5
The Motion to Compel Should Be Denied……………………………….. 7
A. Schoolcraft Has No Objection To Certain of the Requests……….. 7
B. Schoolcraft Objects To Certain Of The Requests…………………. 8
“Financial Expenses” Incurred by Schoolcraft………………………… 8
Media Communications……………………........................................ 9
Requests for Admissions..…………….….………………….......... 11
Conclusion……………….…………………………………….………….. 11
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
ADRIAN SCHOOLCRAFT,
10–cv-6005 (RWS)
Plaintiff,
-against-
MEMORANDUM OF LAW
IN OPPOSITION TO MOTION
TO QUASH AND COMPEL
THE CITY OF NEW YORK, et al,
Defendants.
--------------------------------------------------------------x
Preliminary Statement
Plaintiff submits this memorandum of law in opposition to the City
Defendants’ motion to quash a Subpoena issued to Queens District Attorney Richard A.
Brown and in partial opposition to the motion to compel the production of discovery.
I.
The Motion to Quash Should Be Denied
After NYPD personnel unlawfully assaulted, arrested and kidnapped Adrian
Schoolcraft from his home on October 31, 2009, he complained to various law
enforcement agencies about this criminal conduct. In late 2009 or early 2010,
Schoolcraft reported these criminal acts to the Queens District Attorney’s Office.
(Schoolcraft Declaration ¶ 4.) Yet over the course of the next three years, the Queens
District Attorney’s Office did nothing in connection with Schoolcraft’s report of
criminal conduct by senior NYPD officials, other than meet him once at his attorney’s
office in the summer of 2011. (Id. at ¶ 5.)
2
Then, a year later, on December 4, 2012, District Attorney Brown issued a press
release exonerating the individuals involved, including all the NYPD personnel and all
the Jamaica Hospital medical staff who cooperated in the NYPD’s unjustified
detainment of Schoolcraft at the Jamaica Hospital psychiatric ward for six days. A
copy of DA Brown’s press release is attached to the Subpoena, which is Exhibit A to
the City Defendants’ Motion.
The circumstances, timing and substance of the press release on DA Brown’s
“investigation” relate to important issues in this case, which alleged serious acts of
criminal wrongdoing by senior NYPD personnel. First, Mr. Brown says that his
“comprehensive” investigation revealed no evidence of misconduct that lies at the heart
of the allegations in this action. Accordingly, the investigation file is relevant to the
claims in this case.
Second, the timing of the statement raises serious questions about whether the
Queens District Attorney issued this “statement” in cooperation with the interests of the
defendants in this action. The criminal acts in this case occurred primarily on October
31, 2009, and DA Brown’s statement was issued 38 months later, on December 4,
2012. Three years to find no wrong-doing is a long time. Moreover, the statement was
issued without providing Schoolcraft -- who was the complaining witness and the crime
victim -- with notice of the investigation’s results or with notice that the investigation
results were about to be made public. (Schoolcraft Dec. ¶ 7.) Furthermore, the Queens
3
District Attorney’s office provided a “draft” of the statement to the press before the
“statement” was made public, and as a consequence, the “results” of Mr. Brown’s
investigation were eagerly posted on the internet and made available to all, including
the potential jury pool.1 Finally, the statement was issued just three weeks after it was
reported in the press that Schoolcraft had severed his relationship with his lead attorney
in this action, Jon Norinsberg, and was in the process of seeking new counsel.2
Under these circumstances, the deposition of DA Brown is appropriate so that
Schoolcraft can explore the circumstances surrounding the creation and dissemination
of the statement. At the very least, DA Brown should be required to answer questions
about:
• the grounds for the conclusions in his statement;
• why the statement was issued and made available to the press;
• why the statement was issued three years after the events;
• the circumstances that motivated the release of the statement; and
• whether DA Brown he had any discussions with anyone from the NYPD
or Jamaica Hospital about preparing, drafting or releasing the statement.
In supporting the motion to quash the Subpoena, the City Defendants make two
arguments. First, the City Defendants argue that the request for the file is “moot”
1
Attached hereto as Exhibit A is a copy of an article about the draft statement by Leonard Levitt, dated December
3, 2012, which appears on the internet under the name of a publication called NYPD Confidential.
2
Attached hereto as Exhibit B is a copy of an article by Leonard Levitt, dated November 12, 2012, from NYPD
Confidential, which reports on the termination of Schoolcraft’s counsel.
4
because the lawyers representing the City Defendants are in the process of reviewing
the Queens District Attorney’s file and will produce the documents at some unspecified
time in the future. Second, the City Defendants argue that the deposition of DA Brown
ought not to be required because he is (i) a high-ranking elected official; (ii) who lacks
any personal knowledge about his statement; and (iii) any relevant information is
available from some other (unidentified) source. (City Defendants’ Mem. at 7-9.) Both
of these arguments should be rejected.
A. The City Defendants Should Not Be Reviewing and Producing Documents
From the Office That Was Charged With Investigating Them.
The City Defendants claim that the Law Department is representing the Queens
District Attorney and that, as such, they have undertaken to produce documents “in the
ordinary course” responsive to the Subpoena. (Mem. at p. 5: “this office represents the
Queens DA.”) There are two issues that arise from this position.
First, the Subpoena was returnable on March 18, 2013, and no documents were
produced then or at any time since then. Thus, the City Defendants -- who are
interested parties in this action -- have interjected themselves into the matter, withheld
(and interfered with) compliance with the Subpoena, and have failed to produce any
responsive documents.
Second, the files pertain to an investigation by the Queens District Attorney into
criminal wrongdoing by the Law Department’s clients. Thus, the Law Department has
placed itself into an irreconcilable conflict situation because it is now required to review
5
and to turn over documents in the hands of one of its clients (the Queens District
Attorney) that are or may be incriminating to another of its clients (the NYPD
defendants). Under these circumstances, the Law Department should not be reviewing
any documents, and the Queens District Attorney should be ordered to produce its file
directly to the plaintiff.
B. DA Brown Should Be Required To Answer Questions About His Statement.
As noted above, there are several important questions pertaining to the issuance
of DA Brown’s statement to the press that need to be addressed, including whether DA
Brown had any communications with any of the Defendants before issuing his
statement and the basis for the conclusions he reached in his statement. The Law
Department objects to the deposition of DA Brown on the ground that he is a highranking official without any knowledge. The Court should reject this argument and
direct that DA Brown appear for a three hour examination to be scheduled promptly
after the production of his file at a time that will be convenient to DA Brown and is
least likely to interfere with his duties as a public officer.
The City Defendants rely on Marisol A. v. Giuliani, 1998 U.S. Lexis 3719
(S.D.N.Y. 1998) to support their argument that no deposition should go forward. That
decision, however, is not controlling because there the high ranking officer (Mayor
Giuliani) lacked any particular knowledge about the relevant issues. Id. at *6-7. Here,
on the other hand, DA Brown is the only person who can explain his reasons for issuing
6
his public statement, the grounds upon which he made his statement and whether he
discussed his statement with any of the defendants in this action or with anyone
associated with the NYPD. Under these kinds of circumstances, where a high-ranking
official has made direct statements about subject matters that are relevant to a pending
civil action, a deposition limited to three hours has been directed. United States v. The
Vulcan Society, Inc., 2009 U.S. Dist. Lexis 68167 at *8-11 (E.D.N.Y. Aug. 5, 2009)
(three hour deposition of Mayor Bloomberg ordered to go forward based on the
Mayor’s sworn statement to Congress).
Although the City Defendants claim in their memorandum of law that DA
Brown has no personal knowledge of the facts set forth in his statement, the Court
should reject that claim. Neither DA Brown nor anyone else from his office has
submitted an affidavit attesting to his lack of involvement in the statement.
Accordingly, the Court should reject the claim of lack of knowledge because there is no
evidence to support it. See Pisani v. Westchester County Health Care Corp., 2007 U.S.
Dist. Lexis 3202 at * 7 (S.D.N.Y. Jan. 16, 2007) (in directing the deposition of an
elected official, the court noted that the official failed to submit an affidavit attesting to
his lack of knowledge and rejected the unsworn and inadmissible claims by his
counsel).
It is also important to note that the Law Department has not produced documents
responsive to the Subpoena, document that would show DA Brown’s personal
7
knowledge. Yet at the same time, the Law Department argues that DA Brown lacks
any personnel knowledge. Since the Law Department has improperly interfered with
the production of DA Brown’s file, this is another reason for why the Court should
reject the claim that his deposition is unnecessary. Indeed, the City Defendants have
improperly withheld those documents, and the Court should therefore drawn the
inference that the file, which is clearly in their control, contains information adverse to
the position it is now taking (i.e., that DA Brown has personal knowledge).
II.
The Motion to Compel Should Be Denied
In the City Defendants’ letter dated March 1, 2013, they seek an order directing
Schoolcraft to produce various documents. As set forth below, the motion should be
denied for several reasons. First, Schoolcraft maintains no objection to the production
of some of the documents. See Point II (A) below. Second, Schoolcraft does object to
certain of the requests and those objections should be sustained. See Point II (B) below.
A. Schoolcraft Has No Objection To Certain of the Requests.
The City Defendants request the production of the following documents over
which Schoolcraft does not maintain an objection:
• Documents, if any, relating to Frank Pallestro;
• Documents relating to the web site run by his prior counsel;3
3
To the extent that the documents are not in the possession or control of the plaintiff, those documents, which
are in the possession of plaintiff’s former counsel, cannot be produced. After reviewing the City Defendants’
March 1, 2013 letter, the undersigned counsel contacted the plaintiff’s former counsel and requested that
responsive documents be produced. We understand that the attorney responsible for the web site is on vacation
8
• Affidavits submitted by Schoolcraft in related actions;
• The tape recordings made by Schoolcraft that are relevant to this
action, to the extent that those recordings have not been produced;4
• The computer hard drive used by Schoolcraft to copy the
recordings;5
• Any of the clothing he was wearing on the night of October 31,
2009; and
• A letter he sent to Senator Farley that he mentioned in his
deposition.
B. Schoolcraft Objects to Certain of the Requests.
On the other hand, there are certain requests over which Schoolcraft does
maintain an objection. For the reasons set forth below, the Court should sustain these
objections.
1. “Financial Expenses” Incurred by Schoolcraft.
The City Defendants seek the production of “financial expenses” incurred by
Schoolcraft. In the context of this case, however, that is a vague request because it is
not clear what documents the City Defendants are seeking. To some extent, the City
this week and will continue in our efforts to obtain the requested information.
4
We believe that all such recordings have already been produced and the City Defendants do not provide any
information about what recordings they believe are being withheld.
5
At the plaintiff’s deposition in the related action Floyd v. The City of New York, 08-cv-1034 (SAS), the Law
Department, by Susanne Publicker, examined the plaintiff about the hard drive and he explained that he no longer
has possession of the hard drive and that after being twice evicted from his home he does not know where it is.
Schoolcraft Tr. 32:8.
9
Defendants have explained this request for “financial expenses” by stating that they are
seeking a Jamaica Hospital invoice; proof of purchase of the recording devises used by
Schoolcraft; and mitigation documents. To that extent, we do not maintain any
objection and note that Schoolcraft has already produced the receipts; does not have a
copy of the invoice; and is undertaking to produce mitigation documents.
On the other hand, to the extent that the City Defendants seek the production of
documents pertaining to any legal fees Schoolcraft has incurred in the prosecution of
this case, we do objection on the ground that the information is not relevant to any of
the substantive claims in the Second Amended Complaint and that the issue of legal
fees will only become relevant on a fee application at the end of the action. In addition,
the request for documents relating to legal fees is an unwarranted invasion into
Schoolcraft’s relationship with his counsel and implicates work-product and attorneyclient issues.
2. Media Communications.
The City Defendants request the production of documents relating to
Schoolcraft’s media communications, including emails, text messages and letters with
any member of the media, and copies of all articles created by the media regarding him.
We object to this request on the ground that the media articles are more easily obtained
by the City Defendants and as such “can be obtained from some other source that is
more convenient, less burdensome, or less expensive.” Fed. R. Civ. Pro. 26(b)(2)(C)(i).
10
Since Schoolcraft is an individual and the City Defendants have available the vast
resources of the City of New York, the request that he search for and produce for the
City Defendants copies of publicly-available articles is unreasonable and unduly
burdensome.
To the extent that the City Defendants seek the production of emails, texts
messages and letters to or from Schoolcraft, we object to the request on the ground that
this constitutes an ongoing invasion into the exercise of his First Amendment rights. As
the Court has already noted, one of the claims in this case is that the City Defendants
took illegal actions against Schoolcraft for the very purpose of chilling his First
Amendment rights. Schoolcraft v. City of New York, 2012 U.S. Dist. Lexis 128557 at *
11-13 (S.D.N.Y. Sept. 10, 2012). There cannot be any doubt that contacts that
Schoolcraft has had or may have in the future with the media about this case implicate
core concerns about his right, as a private citizen, to the free expression of his ideas.
Yet by requiring Schoolcraft to turn over all his communications with the media and to
continue to do so for the duration of the case surely will operate to chill the very
impulse to speak out that is protected by the First Amendment. Absent some concrete
and specific request for information, the City Defendant’s request should be denied
because it is not limited or tailored in any manner to seek any particularly relevant
communication but instead seeks the overly broad production of “any and all”
communications. Having a due regard for the First Amendment concerns generally and
11
the specific concerns that Schoolcraft has already raised in this case, the Court should
reject the City Defendants’ request for media communication documents, which
amounts to an invasive and ongoing monitoring of Schoolcraft’s right to speak about
his case.
3. Requests for Admissions.
The City Defendants have served Requests to Admit and have requested that the
Court direct that Schoolcraft respond to those Requests. This part of the motion is moot
because Schoolcraft hereby undertakes to respond to these Requests.
Conclusion
For these reasons, the motion to quash and to compel should be denied.
Dated: March 27, 2013
s/NBS
________________________
Nathaniel B. Smith
Attorney for Plaintiff
111 Broadway – Suite 1305
New York, NY 10006
natbsmith@gmail.com
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