Schoolcraft v. The City Of New York et al

Filing 164

LETTER MOTION for Local Rule 37.2 Conference addressed to Judge Robert W. Sweet from Nathaniel B. Smith dated 9-9-13. Document filed by Adrian Schoolcraft. (Attachments: # 1 Exhibit A-F)(Smith, Nathaniel)

LAW OFFICE OF

NATHANIEL

B.

SMITH

ATTORNEY AT LAW
111 BROADWAY
NEW YORK. NEW YORK 10006
NATHANIEL

B.

SMITH

TEL: [phone]
FAX: [phone]

September 9, 20 13
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 1007
Schoolcraft v. The City ofNew York, et al.,
10-cv-6005 (RWS)

Dear Judge Sweet:
I am writing to Your Honor to request that the Court enter an order
permitting the plaintiff, Officer Adrian Schoolcraft, to review materials that have
been designated by the City Defendants as subject to the attorney's-eyes-only
limitation, including numerous statements by witnesses and by individual
defendants taken by the NYPD during the course of its internal investigation of the
claims asserted by Officer Schoolcraft. In addition, I write to request that the
Court order the City Defendants to return to Officer Schoolcraft all of his personal
property that was taken from him on and after October 31, 2009, when he was
unlawfully arrested and imprisoned at Jamaica Hospital by the NYPD. Finally, I
write to respond to the August 21, 2013 letter from the City Defendants' counsel
regarding the discovery that the plaintiff has recently provided to the City
Defendants.
The Attorney 's-Eyes-Only Limitation

On October 4, 2012, the Court executed a Protective Order that permitted
the designation of certain document discovery on an attorney's-eyes-only basis
(hereinafter "AEO"). A copy of the Protective Order is attached as Exhibit A.

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LAW OFFICE OF

NATHANIEL

B.

SMITH

The AEO Protective Order states that the City Defendants deemed certain
documents as highly sensitive and confidential, including, as examples, arrest
records protected under N.Y.C.P.L 160.50, documents implicating privacy
interests and safety concerns of non-parties, and documents subject to the
investigative, law enforcement, and deliberative process privileges. (!d. at p.1;
second whereas clause.) Where the City Defendants believe that there is good
cause under FRCP 26(c) for a AEO designation, the Protective Order permits the
City Defendants to designate as AEO certain personnel and disciplinary records of
NYPD members and certain documents pertaining to investigations ofNYPD
members, subject to a challenge to that designation. (Id. ~ 2 at pp. 2-3.) To
resolve any disputes over that designation, the Protective Order provides that the
plaintiff must object to the AEO designation in writing within 60 days and then the
parties must seek to resolve the objection in good faith. If the objection cannot be
resolved, the Protective Order provides that the City Defendant must move for an
order approving of its AEO designations. (Id. ~ 5 at p.4.) 1
Five days after the Protective Order was entered, on October 9, 2012, the
City Defendants produced an extensive amount of material subject to the AEO
designation. Attached as Exhibit B is the City Defendants' transmittal letter,
identifying Internal Affairs Bureau ("lAB") interviews of 44 witnesses and parties
in this action as subject to the AEO limitation. (Exhibit Bat pp. 1-2.) As a result
of these designations, Officer Schoolcraft has been prohibited from reviewing the
transcripts and memoranda pertaining to these witness and party statements as well
as the actual tape recordings of the lAB interviews of these witnesses and parties.
(Id.)
When the City Defendants refused to consent to lift the AEO designation,
Officer Schoolcraft's prior counsel, Jon L. Norinsberg, wrote to the Court on
1

The operative language of the Protective Order contains a typographical error
stating that it is the plaintiffs obligation to seek an order approving the AEO
designation, but the context makes clear that it is the City Defendant's obligation
to seek the order approving the designation. The last two sentences of paragraph 5
state: "If plaintiff objects to the designation of particular documents as
"Confidential Materials-Attorneys' Eyes Only" 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, the plaintiff [sic, the defendant] shall move for an order approving such
designation." ld. ~ 5 at p. 4.

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LAW OFFICE OF

NATHANIEL

B.

SMITH

October 18, 2012, seeking an order permitting Officer Schoolcraft access to the
ABO materials. A copy of Mr. Norinsberg's October 18, 2012letter to the Court
together with its exhibits is attached as Exhibit C. The City Defendants' October
26, 2012 response is attached as Exhibit D.
On November 7, 2012, the Court conducted a conference on the ABO
application and other matters in this action. Based on subsequent correspondence,
I understand that the Court told the parties that Officer Schoolcraft should, at the
very least, be permitted to review the witness and party statements and directed the
parties to work in good faith to reach agreement on the matter. Later that month,
however, Mr. Norisberg was relieved as counsel for Officer Schoolcraft, and the
matter was not raised for several months while Officer Schoolcraft was in the
process of obtaining the undersigned as new counsel. 2
On July 25, 2013 and on August 22, 2103, while the attorneys for all parties
were discussing the new discovery plan for this action, I raised again the issue
about the ABO limitation with counsel for the City Defendants and was told that I
should designate the specific documents that I believed Officer Schoolcraft had a
right to review. On August 30, 2013, I sent the City Defendants a letter requesting
that the documents and the tape recording limitation be lifted. That letter is
attached as Exhibit E.
Although this AEO request has been outstanding for a substantial period of
time and notwithstanding the Court's prior statements about lifting the ABO
limitation, the City Defendants have not provided any kind of response to my
requests in July and August to permit Officer Schoolcraft to review the AEO
materials. Indeed, pursuant to the Discovery Plan executed by the Court on August
30, 2013 (Docket# 162; entered September 5, 2013), depositions in this action will
be going forward at the end of his month and the beginning of next month. As
such, further delay by the City Defendants compounds the unfairness to Officer
Schoolcraft by precluding him from reviewing witness and party statements.
There is no basis in the law for sustaining the AEO designations by the City
Defendants. Under Rule 26(c) of the Federal Rules of Civil Procedure, the party
seeking to depart from the general rule of openness and transparency in the judicial
2

It should be noted that one of the reasons that Mr. Noris berg was relieved by
Officer Schoolcraft was because Mr. Norisberg agreed to enter into the AEO
limitation without Officer Schoolcraft's knowledge or consent.

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LAW OFFICE OF

NATHANIEL

B.

SMITH

process has the burden of showing that good cause exists for the issuance of a
protective order. Gamble v. Deutsche Bank, 377 F. 3d 133, 142 (2d Cir. 2004); see
also Schiller v. City ofNew York, 2007 U. S. Dist. Lexis 4285 at* 16-17 (S.D.N.Y.
Jan. 17, 2007) (party seeking to sustain confidentiality designation has the burden
of proving good cause where the parties entered into a stipulated protective order
that provides a mechanism for challenging a designation; rules for "modification"
of an existing protective order do not apply). And the good cause required to
shield the disclosure of evidence cannot be satisfied based on generalized or
conclusory assertions of need or harm. Instead, good cause must be based on
particular and specific demonstrations of facts showing that "disclosure will result
in a clearly defined, specific and serious injury." Schiller, at supra, p.* 17 (quoting
In re Terrorist Attacks, 454 F. Supp. 2d 220, 222 (S.D.N.Y. 2006)); see also Haven
v. Metropolitan Life Ins. Co. , 1995 U.S. Dist. Lexis 5183 at* 29 (S.D.N.Y. April
20, 1995) (specific facts required); Allen v. City ofNew York, 420 F. Supp. 2d 295,
302 (S.D.N.Y. 2006) (disclosure must threaten a clearly defined and serious
injury).
In this case, the City Defendants failed to seek an order approving of their
ABO designations, as required by the terms of the Protective Order; they have
repeatedly failed to address requests to lift the limitation; and they have failed to
identify any specific harm that could arise from disclosure. As such, the Court
should fmd that all of the ABO designations should be lifted. In addition, as noted
by Officer Schoolcraft's prior counsel, the ABO designations should be lifted
because they were created for the purpose of permitting discovery to proceed while
the City Defendants undertook discovery on the issue of whether Officer
Schoolcraft was the individual who provided Graham Raymond of the Village
Voice with a report by the Quality Assurance Division of the NYPD. Since the
City Defendants have failed to present or obtain any such evidence, the
extraordinary ABO limitation ought to be removed. (See Exhibit C at pp. 1-2.)
In the City Defendants' October 26, 2012 response to Officer Schoolcraft's
first application on the AEO issue (Exhibit D), the City Defendants claimed that
Officer Schoolcraft failed to satisfy the standard for the "modification" of an
existing protective order. (/d. at pp. 2-3.) That is a meritless argument because
the Protective Order provides for a mechanism for resolving objections to ABO
designations, and therefore, as a matter of law the Protective Order does not vitiate
the City Defendants' burden of proving that its AEO designations satisfy the good
cause requirement of FRCP 26( c). Schiller, supra, is directly on point.

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LAW OFFICE OF

NATHANIEL

B.

SMITH

The other sundry justifications offered by the City Defendants in their
October 26th letter also fail. Employment records ofNYPD employees that are
generally protected by the New York Freedom of Information Act do not contain
the kind of truly sensitive information that could justify an AEO designation and
there is an existing confidentiality order that should apply to that information. The
City Defendants certainly failed to come forward with any specific harm that
would result from any specific disclosure, as the law requires. In addition,
"ongoing" investigations by the NYPD also do not merit AEO protection because
those investigations have now been completed. Background checks on non-parties
ought to be disclosed because that type of information is particularly relevant to a
party's or a witness's credibility and motivations for testifying. Finally, concerns
about the privacy of citizens who were the victims of criminal conduct or about
personal medical information are bogus concerns because the City Defendants
redacted that information even in the AEO documents that they produced to
Officer Schoolcraft's attorneys.
Since the City Defendants utterly fail to provide any concrete facts showing
any specific harm that could result from disclosure, the AEO designations should
be lifted. Fundamental notions of due process require that Officer Schoolcraft be
permitted to review all the evidence in this case, including the witness and party
statements, the JAB and QAD investigation files, the relevant employment records,
and the witness and party background checks. There is no basis for claiming that
Officer Schoolcraft leaked confidential information to the media in this case.
Indeed, a recent book entitled The NYPD Tapes by Graham Raymond, the Village
Voice reporter who obtained the QAD report that became the genesis for the AEO
Protective Order, contains information that suggests that Mr. Raymond, like other
New York City reporters covering the NYPD, has confidential sources inside the
NYPD.

Officer Schoolcraft 's Personal Property
I am also requesting that the Court order the City Defendants to return to
Officer Schoolcraft all of his personal property that the NYPD took from him on or
after October 31, 2009. Despite several requests, the City Defendants have simply
refused to give him back his property, which includes the tape recorder that he
used to record various of the key events in this action, various papers that were in
his apartment the night he was unlawfully arrested, and his father's rifle. When I
specifically raised this request on July 25, 2013 with counsel for the City
Defendants no justification for keeping Officer Schoolcraft's property was

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LAW OFFICE OF

NATHANIEL

B.

SMITH

provided and, as noted above, the City Defendants have ignored my August 30th
letter, which reiterated this request.
The City Defendants ' Discovery Letter

The City Defendants claim in their August 21, 20 13 letter to the Court that
Officer Schoolcraft has failed to comply with his discovery obligations. The City
Defendants claims are meritless.
We have already stated in writing that, other than the information already
provided, Officer Schoolcraft has no additional information pertaining to
retaliation against Officers Pallestro and Polanco. That ought to be the end of the
matter, yet the City Defendants persist with this meritless application that can only
be designed to make work for opposing counsel and impose needless (and endless)
discovery burdens on the plaintiff.
In addition, on July 25th I informed counsel for the City Defendants that the
address for Officer Schoolcraft's father was the same address as the one contained
in the discovery records in this case. Thus, the City Defendants complain about
not being provided with information that they already have.
Finally, the City Defendants complain that our amplification of Officer
Schoolcraft's deposition testimony about the contents of the numerous tape
recordings is not sufficient. The City Defendants' complaints, which are of their
own making, are as endless as they are meritless. During the course of a poorly
organized examination of Officer Schoolcraft, he testified that many of the specific
areas that the City Defendants were asking about were contained in the numerous
tape recordings that are a substantial part of this action's discovery record.
Earlier this summer, the City Defendants requested that Officer Schoolcraft
review his deposition and provide further specificity as to which tapes contained
information about the various subject matters he was asked about during his
deposition. The City Defendants did not identify any specific questions that they
claimed needed further amplification; indeed, as noted above, the examination was
so poorly organized and conducted that any such specificity was impossible.
Accordingly, we reviewed the transcript, and reviewed the tapes over a sustained
period of time, and then provided in good faith the amplification that we believed
was required. (See Response to Court Order, dated July 1, 2013; attached as
Exhibit A to the City Defendants' August 21, 2013 letter.)

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LAW OFFICE OF

NATHANIEL

B.

SMITH

Now the City Defendants claim that Officer Schoolcraft failed to provide
specific answers to "specific" questions. As noted above, the City Defendants in
their first request did not identify any specific questions that needed amplification.
Moreover, in this second request for the same information the City Defendants
again fail to point to any specific question that needs to be answered. And that is
precisely because the substance of the information has been provided and the City
could not, did not and has not pointed to any specific question that remains
unanswered. Thus, the City Defendants are simply seeking to burden the plaintiff
with wheel-spinning exercises that have no good faith element to them. We ask
the Court to inform the City Defendants that meritless discovery complaints are
subject to cost-shifting under Rule 37 of the Federal Rules of Civil Procedure.

*

*

*

The AEO designations should be lifted because Officer Schoolcraft has a
right to review the statements of witnesses and parties and the other evidence in the
record, and the genuinely sensitive information about arrestees and about employee
medical histories have already been redacted. His property should be returned to
him because no justification for keeping it exists. And the City Defendants
discovery complaints should be dismissed with a warning that sanctions can be
imposed for meritless applications. Attached as Exhibit F is a proposed order
resolving these letter applications.

Respectfully submitted,

~~u
Nathaniel B. Smith

By Hand
cc: All Counsel by email