Schoolcraft v. The City Of New York et al

Filing 148

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 Letter, # 2 Exhibit Letter)(Smith, Nathaniel)

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FAX

ial002/1)05

The New YorkTimes
Company

O.vld ~~aer­

\lll;e Pre&ldent and

Aaaletant GenGral Couns81
620 Elghtt1 Avanue
NY 10018

N~;~WYM;,

MaiCII 21,2012

tel [phone]

tax 212.556-4634

VIA FEDERAL EXPRESS
Hon. Robert W. Sweet
United States District Judge

Daniel Patrick. Moynihan
United States Courthouse
500 Pearl Street
New York, NY 10007-1312
RE:

Schoolcraft v. Tne City of New York. et al (I(J..cv-6005)

Dear Judge Sweet
On behalf of 1bc New York Times Company ("'The Times..), l write to respectfully request that
the Court (a) permit The Times to intervene in the above-referenced action for the limited
purpose of seeking a modification of the parties' Stipulated Protective Order, filed March 12,
2012 ("Protective Order"), (b) modify the Protective Order to require a showing of "good cause"
for scaling, and (c) remo'le the confidentiality designations from a1ready~produccd discovery
materials, except to the extent the materials clisclO&e personal medical information or identify
crime victims or confidential witnesses and thereby satisfy the "good cause" standard. If the
Court prefers, we are prepared to move by formal motion.
The broad sealing of discovery items in this case is contrary to Second Circuit law. Before
discovery documents can be sealed, a party must make a specific showing of "good cause,"
which has not been demonstrated by the parties here - nor is that standard incorporated into the
Protective Order. Sealing is especially inappropriate when a lawsuit is the subject of immense
and legitimate public interest and deals with the practices and policies of a critical public agency.
I1le materials at issue here deal direcUy with a current controversy abour possible police
corruption and the accountability of the police, topics of oentral concern to the citizens of New

York.

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The Rlcht To Intervene. News organizations are routinely permined to intervene and be heard
on issues involving public a~s to proceedings and documents, including challenges to
discovery protective orders. Courts in the Second Circuit have granted such intervention
pursuant to Rule 24 of the Fedenl Rules of Civil Procedure, either as a matter of right or
permissively. See.!!:&.. Securities and Ex.changeConun'o v. TheStreet.Com. 273 F.3d 222,227
(2d Cir. 2001); Schiller y. City of New York ("Schiller['), 04 Civ. 7922 (KMK) (JCF), 2006
U.S. Dist. l.exis 70479, at* 5-*6 (S.D.N.Y. Sept. 27, 2006); Kelly v, City of New Yorl<, No. OJ
Civ. 8906 (AGS)(DF), 2003 U.S. Dist.l.exis 2553, at •6-7 (S.D.N.Y. Feb. 26, 2003); llli!1
NASDAQ Market-Make!S Antitrust Lili&., 164 F.R.D. 346, 350 (S.D.N.Y. 1996); Havens y,
Metropolitan Life Ins. Co .. No. 94 Civ. 1402 (CSH), 1995 U.S. Dist. Lexis 5!83, at *6-*22
(S.D.N.Y. April20,1995); Savitt v. YIIC<:O, No. 95 Civ. 1842, 1996 U.S. Dist. Lcxis 16875, at •
7 (N.D.N.Y. Nov. 8, 1996) (..The Second Circuit Court of Appeals and its district courts have
consistently held that news agencies have standing to challenge protective orders in cases of
public interest"). The Times's intervention wiU assure that the public's interest in access is
appropriately represented. See Schiller I, 2006 U.S. Dist.l..exis 70479, at •7-•8; Savitt, 1996
U.S. Distl.exis 16875, at • 7; Nasclaq, 164 F.R.D. at 351.

Improper Confidentialitl Desipation. Conceded1y, there is neither a common Jaw nor First
Amendment presumption of access to untiJed discovery. as there is with judicial documents filed
with a court. See generally Lugosch v. Pyramid Company ofOoondm. 435 F. 3d 110 (2d Cir.
2006) (First Amendment and common Jaw right to judiciltl documents); United States v.
Amodc9, 44 F3d 141 (2d Cir. 1995) (conunon Jaw rigbt to judicial documents). That does nor
mean, however. that discovery is subject ro sealing at the discretion of the parties or the court
Instead. a pany must show that it has met the ..good faith" standards set fonh in Fed. R. Civ. P.
26(c) before sealing is permissible.
The Second Circuit has made dear that discovery is open to the public unless good cause is
shown under Rule 26(c): '"[T]he party seeking a protective order has the burden of showing that
good cause exists for issuance of that order. It is equally apparent that the obverse also is true.
Le., if good cause is not shown, the discovery materials in question should not receive judicial
protection and therefore would be open to the public for inspection'." Gambale v.Deutscbe
Bank, 377 F.3d 133, 142 (2d Cir.2004) (quoting In re "Agent Omure" Products Liab. Litig., 821
F.2d 139, 145-46 (2d Cir. 1987)); see also San Jose Men;ucy News. Inc. v. U.S. Dist. Ct., 187
F.3d 1096, 1103 (9'• Cir. 1999) ("It is well established Utat Ute fruits of pre-trial discovery are, in
the absen(;C of a court order to the contrary, presumptively public"); Jepsoo. Inc. y. Makita Elec.
Wor]<s, L!d.. 30 F.3d 853, 858 (7'• Cir. 1994) (absent a protective order, "parties to a law suit
may disseminate materials obtained during discovery as they see fir'); Mitchell v. Fishbein, 227
F.R.D. 239,254 (S.D.N.Y.2005) (movant must dernoMtrate good cause for order barring public
dissemination of discovery materials); Condit v. l>Wlne, 225 F.R.D. 113, 115 (S.D.N.Y. 2004)
(same).
To show good cause under Rule 26(c), parties are required to make a "panicular aod specific
demonstration of fact, as distinguished from stereotyped and conclusory statements." Havens.
1995 U.S. Dist.Lexis 5183, at •29 (quoting Cipollone v, lJi&etl Group, Inc., 785 P.2d 1108,

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1121 (3d Cir. 1986)); 1 see al•o Carl5on y. Geneva CitySch. Di•t.. 277 F.R.D. 90, 94 (W.D.N.Y.
2011) (requiring "defined, specific, and serious injury" in case with public agency as a defendant
(citation omitiAld)); Schillet y, Oly o{New York ("Schiller 11"), 04 Civ 7922 (KMK) (JCF). 04
Civ. 7921 (KMK) (JCF), 2007 U.S. Dist. Lexis 4285, at *17-18 (S.D.N.Y. Jan. 19, 2007) ('"the
harm must be significant, not a mere trifle'" in case involving public defendants (citation
omitted)); Allen v. City of New Yolk. 420 F.Supp.2d 295,302 (S.D.N.Y. 2006) (to esiablish
good cause, a party nwst demonstrate that "a 'clearly definc;d and serious injury' ... would result
from disclosure of the document." (citations omiLted)); In re Terrorist Attacks on Sept. 11. 2001,
454 F. Supp. 2d 220,222 (S.D.N.Y. 2006) (ordinarily good cause, exists "when a party shows
that disclosure will result in a clearly defined, specjfic and serious injury"). 2
Because this litigation necessarily implicates the performance of governmental agencies and
actors, the case for openness is even stronger. See Flaherty v. Seroussi, 209 F.R.D. 295,299-300
(N.D.N.Y. 2001) (declining to sea1 discovery because there is "a strong, Iegitimare public interest
on the part of the citizenry to have unfettered access to court proceedings, particularly when they
involve elected officials and the performance of their governmental responsibilities'); Hawley y,
Hall, 131 F.R.D. 578, 585 (D. Nev. 1990) (opening discovery because "the public interest in the
conduct of public officials, elected and appointed, outweighs'' the interests cited by the
defendants); see eenerally Schiller 1L 2007 U.S. Dist. Lexis 4285 (unsealing various police
documents in a case challenging the practices of the New York City Police Depanmenr
("NYPD")).
Here, a review of the public filings in this litigation strongly supports the notion that the public
has a legitimate interest in understanding fully both the positions of the plointiff and the
defend1111ts. The Complaint, which has been the subject of extens.ive coverage, raises serious
concerns about the conduct of the NYPD- whether it has had an illegal quota policy for the
issuance of summonses and arrests; giv-en in~ttructions for police officers to suborn peljury on
police reports; and attempted to prevent discloswe of these illegal acts by having officers
unl11wfully enter into plaintiffs home and subject him to involuntary commitment in a
psychiatric ward for six days. CSee Complaint at lf 2.) Whether these allegations are true or not,
the public is ill-served by not having the opportunity to know what evidence is being offered up
by the parties to support or disprove such claims- and more broadly to understand whether or no
illicit conduct is being condoned by the NYPD within its own ranks.
J In re Terrorist Attacks, 4.54 P.S11pp.2d at 222, posits that a different st110dan:l may apply in complex
cases, and an eaziier Southern District case (Iopo v. Dbir. 210 F.R.D. 76, 77 (S.D.N.Y. 2002)) saw a split
in the cue law and suggested that the Cipollone srandard applied only in conunercial cases, but tbe later
decisions cited here from cases involv;ng public agency defendanu show thllt the standard articulated in
Cioolloue and Allen is the appropriate standan:l in this case.

2

While parties may sometimes argue that modification of a protective order is unwarranted where they
have relied upon it, that principle does not apply where. as: here, confidentiality designations are made
without a showing of good cause. See Schiller II, 2007 U.S. Disl Lexis 4285, at •9-10 ("Where a
protective order permits partie.' to designate discovery materials as 'Confidential' without a showing of
good cause, and one party challenges a designation made by another, the challenging pany is not seeking
to modify the prolecti vc order and therefore does not bear the burden of demonstrating that the
confidentiality de8ignations should be lifted'').

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The parties have failed to demonstrate any harm, Jet alone harm rising to the level of "good
cause,'" that will result from the disclosure of these materials dealing with a public agency that
depends on the trust and confidence of the public, especially in respect to those materials that are
the records of the NYPD itself. While good cause may justify the redaction and sealing of
personal medical information or tbe identities of crime victims or confidential witnesses to
crimes. no such concern attaches ro the communications, reports, and other documents of the
NYPD dealing with deparunental practices and policies.

Accordingly, we respectfully ask the Court to modify the Protective Order to require the parties
to establish good cause before sealing discovery materials and to direct the unsealing of any
already-designated discovery that does not meet the standards of good cause as set forth above.
RespeclfuUy submitb:d,

'}l

( ..:: L c ' - - - -

David E. McCraw

Cc:

Jon L. Norinsberg, Esq.
Bruce M. Brady, Esq.
Brian Lee, Esq.
Suzanna Publicker, Esq.
Gregory John Radomisli
(all via facsimile)

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TheNewYorkTimes

Company

FAX
To:
Pax Number:

Legal Department
Fox No. 212/5~-4634
Jon L. Norinsberg, Bsq

212-406-6890

To:

Bruoo M. Brady, Bsq.

Fax Number:

212-248-681.5

To:

Brian Lee, Esq.
516-352-4952

FaJt Number:
To:

Suzanna PublickeT, Esq.

l'ax Number:

212-788-9776

To:
Fax Number:

Gregory John Radomisli.

From:

David McCraw

Phone Number:

212-556-4031

Date:

312111211:33 AM

Total Pages:

5 page.!! inc.hxling fax cover page

0 Urgent

0 For Review

212-949-7059

D Plcuc Comment

0 Please Reply

Notes:

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