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)

Case 1:10-cv

USDCSDNY
DOCUMENT

"·~· IL

I U'+

r I

d 10/04/12 Page 1(W 9

.

ELECI'RONICALLY FiLED
DOC#:
UNITED STATES D IM<rEC!Ql!£0:
SOUTHERN DIST., 1 ~f'Ai"

\

ll 1\?f [l.L

-------------------------------------------------------------X
ADRIAN SCHOOLCRAFT,
Plaintiff,
STIPULATION AND
PROTECTIVE ORDER FOR
ATTORNEYS EYES ONLY

THE CITY OF NEW YORK, et al.
Defendants.

-----------------------------------------------------------X

IOCV~RWS)

(c(ffi

WHEREAS, plaintiff seeks certain documents from defendants the City of New York,
and NYPD defendants Deputy Chief Michael Marino, Assistant Chief Gerald Nelson, Deputy
Inspector Steven Mauriello, Captain Theordore Lauterbom, Lieutenant Joseph Goff, Sgt.
Frederick Sawyer, Sergeant Kurt Duncan, Lieutenant Christopher Broschart, and Sergeant
Shantel James, (collectively referred to herein as "City Defendants") in discovery in this action,
documents which City Defendants deem confidential;
WHEREAS, the City of New York deems certain of these documents, which include
information regarding non-parties to this litigation that is or may be sealed pursuant to N_ Y.
C.P.L. §!60.50, that implicates the privacy interests and safety concerns of non-parties to this
action, that is of a confidential and sensitive nature, that is subject to the investigative, law
enforcement, and deliberative process privileges;
WHEREAS, the production of documents subject to the Attorneys' Eyes Only
Stipulation and Protective Order is not a waiver of the abovementioned privileges;
WHEREAS, the City of New York objects to the -disclosure of this information and
production of any documents containing this information unless appropriate protection for the
confidentiality of such information is assured;
WHEREAS, the City of New York has previously produced records to pursuant to a

~

EXHIBIT

WA
~

w
"'
~

\<

""

----

~~~e:~/]

Case 1:1 0-cv-06005-RWS Document 104

Filed 10/04/12 Page 2 of 9

Confidentiality Agreement, which was so-ordered by the Court on March 12, 2012, and which
governs the disclosure of confidential materials in this action; and
WHEREAS, the City of New York wishes to ensure that the production of any
additional confidential documents produced during discovery will not be disclosed to any third
parties, including the plaintiff and any individually named defendants in this action, unless and
until such disclosure is expressly authorized by the Court; and
WHEREAS, all parties to this action wish to proceed forward with discovery in an
expeditious and timely manner, without any further delays:
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and
between the attorneys for plaintiff and defendants, as follows:
1.

Until such time as the Court orders otherwise, the production of any confidential

information from this point onward should be for AITORNEYS' EYES ONLY, and should be
disseminated only to plaintiff's and defendants' counsel, to investigators working for and at the
direction of plaintiff's and defendants' counsel, and to expert witnesses who may in the future be
retained and work for and at the direction of plaintiff's and defendants' counsel;
2.

As used herein, "Confidential Materials-Attorney's Eyes Only" 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, City defendants shall designate as "Confidential Materials-Attorney's
Eyes Only" 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) (a) New York City Police
Department ("NYPD") personnel and disciplinary-related records, and records of investigations
regarding the conduct of Members of the Service of the NYPD conducted by the NYPD, the

Case 1:1 0-cv-06005-RWS Document 104

Filed 10/04/12 Page 3 of 9

Civilian Complaint Review Board, or other agencies; (b) files maintained by the NYPD's
Quality Assurance Division ("QAD") with respect to any investigation, including but not limited
to plaintiff; (c) personnel files and the information contained therein including, but not limited to,
information regarding, promotions, discipline, evaluations; (d) 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; (e)
Civilian Complaint Review Board Records; (f) any other documents identified by City
defendants as confidential under the "good cause" standard of Fed. R. Civ. P. 26(c).; (g) any
documents that the Court directs to be produced subject to this order; (h) any testimony
concerning subsection (a), (b), (c), (d), (e), (f), and (g) and documents and the information
contained therein; and (i) any other documents that the defendants may in the future in good faith
deem "Confidential Materials-Attorneys' Eyes Only" pursuant to this Order because of privacy,
security, law enforcement, or governmental interests.
3.

Documents and information shall not be deemed "Confidential Materials-

Attorneys' Eyes Only" to the extent, and only to the extent, that they are (a) obtained by plaintiff
from sources other than defendants; (b) obtained by plaintiff from defendants but not designated
"Confidential Materials- Attorneys' Eyes Only" (c) are otherwise publicly available, or (d) if
this Order or any Confidentiality Order in this case is superseded by Order of the Court.
4.

The "Confidential Materials- Attorneys' Eyes Only" shall not be disclosed to any

of the parties to this action until such time these documents become publicly available or ordered
by the Court.
5.

The defendants shall designate in good faith particular documents "Confidential

Materials-Attorneys' Eyes Only" by labeling such documents "Confidential Materials-Attorneys'

Case 1:1 0-cv-06005-RWS Document 104

Filed 10/04/12 Page 4 of 9

Eyes Only" and/or by designating such documents by Bates Number in a writing directed to
plaintiff's counsel. The City Defendants shall have a reasonable time to inspect and designate as
"Confidential Materials-Attorneys' Eyes Only" 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-Attorneys' Eyes
Only" during such reasonable period. 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, then the plaintiff shall move for
an order approving such designation.
6.

Neither plaintiff, plaintiff's 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 plaintiff's 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 maybe 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 terms 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 form.
7.

Plaintiff's attorneys shall not disclose the "Confidential Materials-Attorneys'

Eyes Only" to any person who is not a member of the staff of their law office, an investigator

Case 1:1 0-cv-06005-RWS Document 104

Filed 10/04/12 Page 5 of 9

working at the direction of plaintiffs counsel, or to expert. In the event a conflict arises between
the parties as to whether plaintiffs attorneys may disclose the information or documents to a
potential deponent, or other person whom counsel reasonably believes may have knowledge of
the information described or referred to in the "Confidential Materials-Attorneys' Eyes Only",
plaintiffs attorneys agree not to do so until such time that the parties can obtain a ruling from the
Court in this regard. Before any disclosure is made to any investigator and/or expert witness,
plaintiffs attorneys shall provide each person with a copy of this Stipulation and Protective
Order for Attorneys' Eyes Only", and such person shall consent in writing, in the form annexed
hereto as Exhibit "A", not to use the Confidential Materials for any purpose other than in
connection with their own work performed in connection with this case, and not to further
disclose the

"Confidential Materials-Attorneys' Eyes Only".

The signed consent shall be

retained by plaintiffs attorneys and copies provided to counsel for the defendants upon written
request for same.
8.

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 MATERIAL-ATTORNEYS' EYES ONLY." Such
portion of the transcript shall be deemed to be Confidential Materials within the meaning of this
Stipulation and Protective Order.
9.

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:

Case 1:1 0-cv-06005-RWS Document 104

Filed 10/04/12 Page 6 of 9

CONFIDENTIAL MATERIAL-ATTORNEYS' EYES ONLY
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.
10.

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 therefrom, 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;
plaintiff's 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 not be used by said
attorneys for any purposes unrelated to this litigation.
II.

Should the City Defendant's produce any Confidential 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. lfsuch objection cannot be resolved
without the Court's involvement, then any party may move for an order removing such

Case 1:10-cv-06005-RWS Document 104

Filed 10/04/12 Page 7 of 9

redactions. 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 al .. 10Civ.-4228 (RWS), or any other matter against the City of New York, for disclosure of materials
that would otherwise be subject to this Protective Otder.
12.

The panies may seek modification of this Stipulation and Protective Otder, and

the panies may seek review of confidentiality designations under this Order by application to the
Court for good cause shown at anytime during the course of this litigation.
13.

Facsimile signatures or signatures transmitted electronically shall have the same

force and effect as if signed in the original.
14.

This stipulation shall be binding upon the parties immediately upon signature, and

shall be submitted to the Court for entry as an Order.
15.

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

Defendants' use of the Confidential Materials in any manner.

Dated:

September 19, 2012
New York, New York

~
Attorney for Plaintiff
225 Broadway, Suite 2700
New York, NY 10007
[phone]
[e-mail]

COHEN & FITCH, LLP
Gemld Cohen (GC04!4)
Joshua Fitch (JF2813)
Attorneys for Plaintiff
233 Broadway, Suite I 800
New York, NY 10279
[phone]
[e-mail]
[e-mail]

Case 1:1 0-cv-06005-RWS Document 104

S""'"ma

~

blicker (SPIOOS)

Assi:stlmt Corporotion Counsel

MICHAEL CARDOZO
Office of the Corporation Counsel
oflhc City of New York
Attorney for CITY DEFENDANTS
100 Chweh Stree~ Room 3-200
New York, NY 10017
[phone]

~~

r y(
B48 6)
,/
CALLAN, KOSTER, BRADY&. BRENNAN, LLP

Attorneys for Defendant
DR. LILIAN ALDANA-BERNIER
I Whitehall Street
New York, NY I0004-2140
(212) 248-01 !5
[e-mail]

-y-------

Walter A. Kretz, Jr. ~
SCOPPE'ITA SElF!' KRETZ&_ ABERCROMBIE
Attorney for Defendant Steven Mauriello
444 Madison Avenue, JOth Floor

Now York, NY 10022
[e-mail]

Filed 10/04/12 Page 8 of 9

Gregory J. Radomioli (GJR2670)
MARTIN, CLEARWATER
&BELL, LLP

Attorneys fClr Defendant
JAMAICA HOSPITAL
220 East 42nd Stn:et
New York, NY 10007
[phone]
[e-mail]

-/7. ~P~
~~--!VONE, DEVINE & JENSEN, LLP

Attorneys for Defendant
!SAK JSAKOV, M.D.
2001 Marcus Avcnua, Suite NlOO
Lake Success, New York 11042
[phone]

brianlee@idj!aw.com

Case 1:1 0-cv-06005-RWS Document 104

Filed 10/04/12 Page 9 of 9

•
EXHIBIT A

The undersigned hereby acknowledges that he is an investigator and/or expert witness
working for and at the direction of plaintiff's or defendant's counsel in the action title
Schoolcraft v. City of New York, et al., 10 CV 4228 (RWS), has read the Stipulation and
Protective Order entered in the United States District Court for the Southern District of New
York on September 19,2012, in that action, and understands the terms thereof. The undersigned
agrees not to use materials designated "Confidential Materials-Attorneys' Eyes Only" as defined
therein for any purpose other than to locate non-party witnesses in connection with the
prosecution or defense of this case, and will not further disclose such information.

Date

Signature

Print Name

Occupation

THE CITY OF NEW YORK

LAW DEPARTMENT

MICHAEL A. CARDOZO
Corporation Counsel

SUZANNA PUBLICKER
Assistant Corporation Co11nsef

100 CHURCH STREET
NEW YORK, NEW YORK 10007

E-mail: [e-mail]
Phone: [phone]

Fax: (212) 788·9776

October 9, 2012
VIA HAND DELIVERY
Jon L. Norinsberg, Esq.
Attorney for Plaintiff
225 Broadway, Suite 2700
New York, New York 10007
Cohen & Fitch, LLP
Attorneys for Plaintiff
233 Broadway, Suite 1800
New York, New York 10279
Re: Schoolcraft v. The City of New York, eta!.
I 0 CV 6005 (RWS)
Counsel:
In accordance with defendants' continuing obligation under F.R.C.P. 26(e), enclosed
please find additional documents responsive to Plaintiffs First and Second Sets of Requests for
Production of Documents, bearing Bates Nos. NYC 3789 through NYC 7496. Please note that
documents bearing Bates Nos. NYC 3789 through NYC 3823; NYC 00004587 through NYC
00006112; NYC 7492 through NYC 7493; and NYC 7495 through NYC 7496 are being
produced subject to the attorney's eyes only stipulation and protective order, endorsed by the
Court on October 5, 2012. Documents bearing Bates Nos. NYC 00003824 through NYC
00004586 and NYC 7450 through NYC 7491 are being produced subject to the confidentiality
stipulation and protective order, endorsed by the Court on October 5, 2012.
Bates Stamp No.
NYC 3789
NYC 3790
NYC 3791
NYC 3792
NYC 3793
NYC 3794
NYC 3795

Document Description
I. lAB CD titled I 0 I A PO Mohabir

2.
3.
4.
5.
6.
7.

lAB
lAB
lAB
lAB
lAB
lAB

CD titled
CD titled
CD titled
CD titled
CD titled
CD titled

102A PO Gaspari
103A PO Nowacki
I 04A PO Visconi
105A PO Drakakis
I 06A PO Reyes
I 08A Lt. Crawford
EXHIBIT

Confidentiality
AEO
AEO
AEO
AEO
AEO
AEO
AEO

8. lAB CD titled 109A Sgt. Scanlar
9. lAB CD titled II OB Sgt. Duncan
10. lAB CD titled IliA PO Gough
II. lAB CD titled 113A Det. Barbara
12. lAB CD titled 114A Sgt. Hawkin
13. lAB CD titled 128A Captain Lauter born
14. lAB CD titled 131A (Side A)ChiefMarino
IS. lAB CD titled 13IA (Side B)ChiefMarino
16. lAB CD titled 146A DI Green
17. lAB CD titled 147B PO Deck
18. lAB CD titled 148A AC Nelson
19. lAB CD titled !SOB Lt. Caughey (Side A)
20. lAB CD titled !SOB Lt. Caughey (Side B)
21. lAB CD titled 168A EMT Villaverde
22. lAB CD titled 196A Sgt. Conwell
23. lAB CD titled 197A PO Hurly
24. lAB CD titled 198A Sgt. James
2S. lAB CD titled 199A PO Delafuente
26. lAB CD titled 206A Det. Yeager
27. lAB CD titled 207 A Det. Salazar
28. lAB CD titled 208A PAA Boston
29. lAB CD titled 209A Sgt. Glaudino ESU
30. lAB CD titled 217 A PO Sadowski
31. lAB CD titled 242A PAA Thompson
32. lAB CD titled 243A Sgt. Weber
33. lAB CD titled 244A PO Lewis
34. lAB CD titled 278A PO Reyes
3S. lAB CD titled 279A Sgt. Gonzalez
36. CD Containing Confidential Documents from
lAB Investigation M09-1973

NYC 3796
NYC 3797
NYC 3798
NYC 3799
NYC 3800
NYC 3801
NYC3802
NYC 3803
NYC 3804
NYC 380S
NYC 3806
NYC 3807
NYC 3808
NYC 3809
NYC 38!0
NYC 3811
NYC 3812
NYC 3813
NYC 3814
NYC 381S
NYC 3816
NYC3817
NYC3818
NYC38!9
NYC 3820
NYC 3821
NYC 3822
NYC 3823
NYC00003824NYC00004S86

AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
AEO
Confidential

37. CD Containing AEO Confidential
Documents from lAB Investigation M091973
38. lAB CD titled ISIAIIS2A Astor/Santana
39. lAB CD titled IS6A Misty Schoolcraft
40. lAB CD titled 46A Schoolcraft Recordings
41. lAB CD titled IS7 A Ewart Marshall
42. lAB CD titled 189A,B- P.O. Louis; 166A,B
- P.O. Miller; 170A-D - P.O. ltwaru; !63A P.O. Porter; 16SA- Sgt. Gallina; 169A- Sgt.
Rogers; 186A,B - PBBN lU 14 PGs

NYC00004S87NYC00006112

AEO

- 2-

NYC7492
NYC7493
NYC7494
NYC749S
NYC7496

AEO
AEO
Not Confidential
AEO
AEO

In accordance with both so-ordered stipulations and the Federal Rules of Civil Procedure,
enclosed please also find a privilege log, identifying documents from the lAB case file that have
been withheld on the basis of privilege. 1 Please note that for the documents provided under the
assorted confidentiality designations, incidents reflecting charges of misconduct that predate the
incident by more than ten years, and incidents that do not involve allegations of a similar nature
to the allegations against the individual defendant officers in the complaint (Excessive Force,
Unlawful Search and Seizure, Failure to Intervene, False Arrest, Malicious Abuse of Process,
and Involuntary Commitment) or false statements have been redacted. All disciplinary and
personnel files relating to non-party police officers have also been redacted. Additionally,
pedigree information of defendants and non-parties have been redacted throughout.
Please note that City Defendants supplement their Responses and Objections to
Plaintiffs Second Set of Document Requests, Document Requests Nos. 26 and 28 pertaining to
lAB Case No. 558110 regarding Defendant Marino and lAB Case No. 09-55089 regarding
Defendant Lauterborn, to state, upon information and belief, that these investigations were
consolidated into the larger lAB investigation into allegations regarding plaintiff Adrian
Schoolcraft. Therefore, documents responsive to these requests can be found in the annexed
documents. Further, in response to Document Requests Nos. 27, 30, and 36, also set forth in
plaintiffs second set of discovery demands, City Defendants state, upon information and belief,
that requested lAB Case Nos. 08-32052,07-34586, and 08-15216 do not involve allegations of a
similar nature to those alleged herein or false statements, and will therefore not be produced.
City Defendants had previously responded that they were continuing to search for
information responsive to plaintiffs Document Requests Nos. 42-43 relating to Audio
Recordings, Interview Memos, and/or DOSs from the Quality Assurance Division "investigation
into downgrading and not reporting crimes as reported by Adrian Schoolcraft." Based upon a
review of the relevant documentation, City Defendants maintain their objections set forth in their
responses, including, but not limited to, the fact that the requests are overbroad, seek information
not relevant to the subject matter of this lawsuit, is outside the scope of the complaint in this
action, and seek information that is not reasonably calculated to lead to the discovery of
admissible evidence. City Defendants further object to the extent that this request is unduly
burdensome and seeks private and/or confidential information pertaining to non-parties to this
action. As the final report from QAD has already been produced, City Defendants will not be
producing the underlying investigative files.
Also enclosed herein are additional documents responsive to plaintiffs subpoena upon
Councilman Peter Vallone, bearing Bates-Nos. NYC 7450 through NYC 7491. Please note that
because of sensitive information regarding non-party identities, these documents are being
produced subject to the confidentiality stipulation and protective order, endorsed by the Court on
October 5, 2012.

1

Due to the size of the Internal Affairs Bureau case file, and the manner in which the documents therein were
stored, logged, and categorized by City Defendants, documents withheld from the lAB Case File on the basis of
relevance have also been identified in the annexed log. This in no way constitutes a commitment by City Defendants
to provide a relevance Jog on either a retroactive or proactive basis in this litigation.

-3-

Finally, after a review of previously produced documents, City Defendants have removed
the confidentiality designations of the following documents:
Bates Starn!) No.

Document Description

Confidential it):'

Property Clerk Invoices

D000500D000501

Not Confidential

NYSPIN Response Screen

D000502-504

Not Confidential

Memo book Entries for Defendant Broschart

D000505D000507

Not Confidential

CD: Sprint Reports/Radio Transmissions from 10/3ll09
I 04 Pet. Loc: 82-60 88 Pic.

D002275

Not Confidential

CD: Sprint Reports/Radio Transmissions from 10/3ll09
I 04 Pet. Zone 31 Radio

D002276

Not Confidential

CD: Sprint Reports/Radio Transmissions from ll/0 1/09
I O'i Pet. Zone 31 Radio

D002277

Not Confidential

CD #I: Service Attempts

D002278

Not Confidential

CD #2: Service Attempts

D002279

Not Confidential

Patrol Guide Procedures

PGOOOOO!PG000703

Not Confidential

Sincerely yours,

s~w

Assistant Corporation Counsel
Special Federal Litigation Division
cc:

Gregory John Radomisli (By Hand Delivery)
MARTIN CLEARWATER & BELL LLP
Attorneys for Jamaica Hospital Medical Center
220 East 42nd Street 13th Floor
New York, NY 10017

-4-

Brian Lee (By First-Class Mail)
IV ONE, DEVINE & JENSEN, LLP
Attorneys for Dr. Isak Isakov
2001 Marcus Avenue, Suite NIOO
Lake Success, New York 11042
Bruce M. Brady (By Hand Delivery)
CALLAN, KOSTER, BRADY & BRENNAN, LLP
Allorneys for Lillian Aldana-Bernier
I Whitehall Street
New York, New York 10004
Walter Aoysius Kretz, Jr. (By Hand Delivery)
SEIFF KRETZ & ABERCROMBIE
Attorney for Defendant Mauriello
444 Madison Avenue, 30th Floor
New York, NY 10022

-5-

JON

L.

NORINSBERG

ATTORNEY AT LAW
TRANSPORTATION BUILDING

225 BROADWAY
Sum 2700
NEW YORK, NEW YORK

10007

www.norinsberglaw.com
BRONX OFFICE

5938

TEL [phone]
FAX [phone]

fiELDSTON ROAD

BRONX, NEW YORK

10471

E-MAIL:

[e-mail]

JON L. NORINSBERG
ALEX UMANSKY

October 18,2012
Honorable Robert W. Sweet
United States District Court
Southern District of New York
500 Pearl Street, Room 1920
New York, New York 10007

Re:

Sc/wolcraO v. Citv o(New York. eta/
10 CV6005 (RWS)

Your Honor:
I represent plaintiff Adrian Schoolcraft in the above referenced civil rights action brought
pursuant to 42 U.S.C. § 1983. I write now to respectfully request that plaintiff Adrian Schoolcraft
be granted access to materials which have been designated by the City of New York as "Attorneys
Eyes Only". Defense counsel, Suzanna Publicker, Esq., opposes this request. Ms. Publicker,
however, has failed to state any basis for her opposition to this request. For the reasons set forth
below, plaintiff should be allowed to have access to all documents provided by the City of New
York.

Procedural History
By way of background, in March 2012, an article appeared in the Village Voice which
disclosed the contents of the QAD investigation into Mr. Schoolcraft's allegations. On March 28,
2012, the parties appeared before Your Honor to address this issue. At that time, the Court ruled that
the City ofNew York could, as part of discovery, inquire into the source of this leak before turning
over any further confidential materials.
The Attorneys Eyes Only Stipulation was originally conceived as a temporary measure to
allow the City of New York to continue to exchange discovery materials while the City investigated
the source of the leak of the QAD. In fact, the record will reflect that it wasplaintiff's counsel-and
not the City of New York- who originally proposed the idea of an Attorneys Eyes Only Stipulation,
so as to ensure that discovery could proceed forward while the City investigated the source of the
leak.
EXHIBIT

On August 9, 2012, plaintiff signed an affidavit that specifically denied any involvement or
knowledge into the leak of the QAD investigation materials. (Ex. A). This affidavit was drafted by
the City of New York, and was provided to the City as a temporary measure until they could take
plaintiffs deposition. On October II, 2012, plaintiff appeared for his deposition. At that time,
plaintiff once again specifically and emphatically denied any involvement in the QAD leak.
Following plaintiffs deposition, on October 12, 20 12, plaintiffs counsel wrote to defendants
to request that plaintiff- and plaintiff alone - be allowed access to the materials which had been
designated as "Attorneys Eyes Only" (Ex. B). On October 16, 2012, the City ofNew York responded
with a one line e-email, refusing to consent to plaintiffs request, but failing to offer any explanation
for such a refusal. (Ex. C).
There Is No Longer Any Valid Basis For Denying Plaintiff Access To The Discovery Materials.
The original rationale for denying plaintiff access to discovery materials no longer exists.
Simply put, there is no evidence whatsoever that plaintiff Adrian Schoolcraft had anything to do with
the QAD leak. Mr. Schoolcraft has now provided sworn testimony- twice- emphatically denying
that he had anything to do with the leak of the QAD investigation findings. The City has had ample
time to conduct its investigation, and has failed to discovery any evidence at all linking plaintiff to
this leak. Given the complete lack of any evidence connecting plaintiff to this leak, the City's
continued insistence that plaintiff should be denied access to discovery materials is wholly
unwarranted and fundamentally unfair to plaintiff.
Plaintiff Needs To Have Access To The Discovery Materials In Order To Meaningfully
Participate In His Case.
It is fundamentally unfair to deny plaintiff access to the materials which have been exchanged
during discovery. These materials -which consist largely ofthe interviews conducted during the lAB
investigation - directly involve plaintiffs allegations in this lawsuit. There are tape recorded
interviews of multiple defendants in this case relating to the October 31, 2009 invasion into
plaintiffs home, as well as the events which occurred earlier in that day. To deny plaintiff access to
these materials would be to effectively prevent him from participating in his own case. It would be
impossible for plaintiff to meaningfully assist counsel in preparing for depositions and formulating
further document requests without having any access to these discovery materials. Therefore, as a
matter of fairness, plaintiff respectfully requests that the Court grant him access to the materials
which have been exchanged during discovery.
Defendants Would Suffer No Prejudice If Plaintiff Were Allowed Access to the Designated
Materials.
Defendants have not argued, nor could they, that they would suffer any prejudice if plaintiff
were allowed to see the materials which have been designated confidential. The only possible
justification for withholding such materials -concerns about another possible leak- are non-existent
at this point. Plaintiff has given sworn testimony on this issue on two occasions, and there is no
evidence whatsoever linking plaintiff to the earlier leak of the QAD investigation findings. Under

such circumstances, there is simply no longer any compelling reason for denying plaintiff access to
materials which directly involve his allegations in this lawsuit.
For all of the foregoing reasons, plaintiff Adrian Schoolcraft respectfully requests that the
Court allow him to have access to materials designated by the City ofNew York as "Attorneys Eyes
Only."
I thank the Court for consideration of this request.

Respectfully submitted,

Jon L. Norinsberg
JLN/nb
Enclosures
cc:
Scoppetta SeiffKretz & Abercrombie
444 Madison A venue
30th Floor
New York, N.Y. 10022-1010
Attn: Walter A Kretz, Jr., Esq.
Corporation Counsel
100 Church Street
Room 3-200
New York, New York 10007
Attn: Suzanna H. Publicker, Esq.
Martin, Clearwater & Bell, LLP
220 East 42nd Street
New York, New York 10017
Gregory J. Radomisli, Esq.
Callan Koster Brady & Brennan, LLP
One Whitehall Street
IO'h Floor
New York, New York 10004
Attn: Bruce Brady, Esq.

Ivone, Devine & Jensen, LLP
200 I Marcus A venue
Suite NIOO
Lake Success, New York II 042
Attn: Brian Lee
Cohen & Fitch, LLP.
The Woolworth Building
233 Broadway
Suite 1800
New York, New York I 0279

Exhibit A

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------- X

ADRIAN SCHOOLCRAFT,
Plaintiff,
-against-

AFFIDAVIT OF
ADRIAN SCHOOLCRAFT

10 CV 6005 (RWS)

THE CITY OF NEW YORK, et al.,
Defendants.
----------------------------------------------------------------------- X

STATE OF NEW YORK
COUNTY OF ALBANY

)
: SS.:
)

Adrian Schoolcraft, being duly sworn, hereby states, under penalty of peljury and
pursuant to 28 U.S.C. § 1746, that the following is hue and correct:
I. I am the plaintiff in this matter.

I make this declaration based upon my personal

knowledge.
2. By letter dated March 12, 2012, counsel for defendant City of New York, requested that
the parties provide affidavits attesting to the fact that they have not violated the
Stipulation and Protective Order in this matter, dated September 28,2011, by producing a
confidential New York City Police Department ("NYPD") Quality Assurance Division
Report ("QAD Report") to any media outlet, including the Village Voice.
3. I am aware that the parties entered into a Confidentiality order in or about September
20 II, which was ordered by the Court on March 12, 2012, relating to various NYPD
documents, including, but not limited to, the QAD report.

-l.

I am awar<J of the gc:ncral tenns ami ClHJdition,; of the Conlidentiality order and
understand its terms. Most importantly. I understand that the documents which are
subject to the order cannot be disclosed to anyone. except

1r1

the very limited

circumstances set forth in paragrnph 4.
5. I did not provide. show. or otherwise disseminate the QAD Report. bearing Bates Nos.

0000508-000(,02, to the Village Voice newspaper or repo11er Graham Rayman, anc.l do
not know or have any knnwlcdgc whatsoevc;r about who did or may have done Sl>.
6. I did not pnwidc. show. or nthcrwise disseminate the QAO Report. bearing Bates Nos.
DOOOSOB-000602. to any media outlcL including but not limited to newspapers,
magazines. blogs, or television networks and I do not know or have any knowledge
whatsoever about who did or may ha1·c done so.

7. I did not provide, show, or otherwise disseminate the QAD Report, bearing Bates Nos.
0000508-000(>02. to my J;,thcr. Larry Selwolcratl. or any family members and I do not
know or have any knowledge whatsoever about whether anyone may have done so.
X. I do not know or have any knowledge whatsoever about who provided either Graham

Rayman <•r the Village Voice with a copy ol'thc Qi\0 Rcpo11.

Sworn to bcf(m: me this
or.flL:t;,lf ,2012

(j·l{,

"

day

-~

c?:£ --"

NOTARY I'UBLIC

-

'-

Exhibit B

JON L. NORINSBERG
AITORNEY AT LAW
TRANSPORTATION BUILDING

225 BROADWAY
SUITE 2700
NEW YORK, NEW YORK 10007

www.norinsberglaw.com
BRONX OFFICE
5938 fiELDSTON ROAD
BRONX, NEW YORK 10471

TEL [phone]
FAX [phone]
E-MAIL: [e-mail]

ION L. NORINSBERG
ALEX UMANSKY

October 12, 2012
Corporation Counsel
I00 Church Street
Room 3-200
New York, New York 10007
Attn: Suzanna If Publicker, Esq.
Re:

Sclloolcraft v. Citv o(New York. et al
10 CV 6005 (R WS)

Dear Ms. Publicker:
Since plaintiff has now given both an affidavit and sworn deposition testimony denying his
involvement with the QAD leak - and since there is no evidence whatsoever that plaintiff had
anything to do with the QAD leak- we believe that there is no longer any basis for denying plaintiff
access to confidential documents exchanged during discovery. Therefore, we intend to write to Judge
Sweet to request permission for Adrian Schoolcraft, and Adrian Schoolcraft alone (i.e., not Larry
Schoolcraft or any other person) to be exempt from the Attorneys Eyes Only restriction on
documents exchanged by the City defendants. Please advise as to whether or not you consent to this
request
Thank you for your attention to this matter.
Very truly yours,

cc:

Cohen &.Fitch, LLP.
The Woolworth Building
233 Broadway
Suite 1800
New York, New York 10279

Exhibit C

rage

Nicole Bursztyn
-------~----------~-~------~-------

From:

Publicker, Suzanna [[e-mail]]

Sent:

October 16, 2012 8:58AM

To:

Nicole Bursztyn

Subject: RE: Schoolcraft v. City of New York
Defendants do not consent

From: Nicole Bursztyn [mailto:[e-mail]]

Sent: Friday, October 12, 2012 4:04 PM
To: Publicker, Suzanna
Cc: Jon Norinsberg External; Gerald Cohen; Joshua Fitch
Subject: Schoolcraft v. City of New York
Dear Ms. Publicker.
Please see attached correspondence From Mr. Norinsberg.
Thank you.
Nicole Bursztyn
Law Offices oF Jon L. Norinsberg. Esq.

212-791-5396

I 0/18/2012

1

or 1

***************

-cO'tl. J~-

*******************

T~ISSIDN

MOl:€ = /"EMeRY

DATE OCT-18-2012

START~OCT-18

13:19

*****

Tli"E 13:33

********

END:OCT-18 13:33

FILE f'll ....?44
STN

Cll'l1.

Ct£-TOJO-k'

NO.
001

(l(

"""

(l(

003

(l(

"""
""'

(l(

005
006

(l(
(l(
(l(

•
•
•
•
•
•
•

STATION NAME/TEL NO.

PAGES

DURATION

1212805?'925
1212'7889?76
12124062313
12129497054
15163524952
12122486815
12123716883

RBBR

1312/012
012/012
12112/1312
012/012
012/012
012/012
012/012

01!J: 01:22
00=1211=26
00=1211=22
00=01=24
00'02'27
00=01 :21
00=1211=20

t-IJ.

-LAW OFFICES

************************************ -

- ***** -

LAW OFFICES OF
JON L. NORINSBERG
225 BROADWAy I SUITE 2700
NEW YORK, NEW YORK 10007
FAX TRANSMISSION
DATE:

October 18,2012

TO:

Honorable Robert W. Sweet
[phone]

Suzanna PubIicker, Esq.
Corporation Counsel
[phone]

Cohen & Fitch
[phone]

Gregory John Radomisli, Esq.
Martin Clearwater & Bell, LLP
[phone]

Brian Lee, Esq.
Ivone, Devine & Jensen, LLP
[phone]

Bruce M. Brady, Esq.
Callan, Koster, Brady & Brennan, LLP
[phone]

Waller A. Kretz, Jr., Esq.
Scoppena SeiffKreiZ & Ab<rcrombie
[phone]

FROM:

Jon L. Norinsberg, Esq.
Phone: [phone]
Fax: [phone]

PAGES:

(12) Including Cover Memorandum

RE:

Adrign Sclloolcraft v. Citv ofNew York. el a/.

/0 CV 6005 (R WS)

MESSAGE: Please see attached.

12124066890-

*********

LAW OFFICES OF
JON L. NORINSBERG
225 BROADWAY, SUITE 2700
NEW YORK, NEW YORK 10007
FAX TRANSMISSION
DATE:

October 18, 2012

TO:

Honorable Robert W. Sweet
[phone]
Suzanna Publicker, Esq.
Corporation Counsel
[phone]
Cohen & Fitch
[phone]
Gregory John Radomisli, Esq.
Martin Clearwater & Bell, LLP
[phone]
Brian Lee, Esq.
lvone, Devine & Jensen, LLP
[phone]
Bruce M. Brady, Esq.
Callan, Koster, Brady & Brennan, LLP
[phone]
Walter A. Kretz, Jr., Esq.
Scoppetta Seiff Kretz & Abercrombie
[phone]

FROM:

Jon L. Norinsberg, Esq.
Phone: [phone]
Fax: [phone]

PAGES:

(12) Including Cover Memorandum

RE:

Adrian Sclzoolcra(t v. Citv o(New York. eta/.
10 CV6005 (RWS)

MESSAGE: Please see attached.

....

...

~

....

....

• ...

q·

....

~·.

.,. .

THE CITY OF NEW YORK

LAW DEPARTMENT

MICHA>;J, II. ('IIRIJI)UI

I00 CHURCH STRiliiT
NEW YORK. NY 10007

Cu1pwc,fiun CW~Ucl

W/.ANNA rUDLICKER
phono: ('ZJ2) 78&-1103
r.. : (21Zl 788-9776

amail: Spllblil:[e-mail]

October 26, 2012
BY FAX [phone].
Honorubl~ Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
N~w York; New York 10007

Re: Schoolcra!t v. The City of New York. el ul.
10-CV-6005 (RWS)
Your Honor:
1 am the Assistant Corporation Counsel in the office of Michael A. Curd\>zo,

Corporation CoWJsel of the City or New York, assigned to represent the City Defendunts in the
above-referenced mallet. City Defendants write in opposition to plainti Irs October. 18, 2012
motion seeking io modify the so-ordered A~omeys~ Eyes Only Stipulation and allow plaintiff
·
access to the documents produced by City Defendunls pursuan,i to that Stipulation.
City Defendants Never Agreed to a Temporary Designation
Plaintiffs October 18u' motion alleges that the designation of certain materials U$
Altomeys'· F.yes Only under the Attorneys' Eyes Only Stipulation, endon;ed by the Court on
October 5, 2012, was a temporary one. Plaintiff is wrong. The parties newr discussed, nor did
City Defendants ever agree to, any such temporill limitation of ihe Stipulation. According to
generally accepted principies of contrm:t law, absent ambiguity, the parties' intentions must b~
discem~d rron1 the Jour comers of the document,· and extrinsic evidence should not be
considered. 1bc plain language of the Attorneys' Eyes Only Stipulation and Order sta!A:s that it
shall be in place "[u)ntil such time as the Court orders otherwise," not until the City Defendants
receive an ullidavit fi-om plainiill'. However,. even if-extrinsic evidence could be considered,
plaintiff has not, and cannot, pointto any such evidence that would supp(>rl his position.
Regardless of the foregoing, plaintill's applic<~ti(m is premature as the protective
order t:1<plicilly provides a means io address plaintiff's concerns. Pursuant to the Attorneys'
Eyes Only Stipulation,· "[ijf plaintiff objects to. the desigmttion of particular documents us
"Confidential Materials- Attorneys' Eyes Only'' plaintifTsiJull stale such C>bjeclion in \'l'riting to
tbc defendants within60 days of receipt[.)" (emphasis added). Accordingly, CO]mscl for plaintiff
should ~eview the documents produced under the Attorneys'_ Eyes Only Confidentiality Order
and identify, with particularity • which documents they believe _plaintiff is entitled to and/or
!.

EXHIBIT

~

_J)_

"
w
"'
w

~
'g
~

"

r.r·

-~-

.~.

,....

.t.

.....

""

·'·

•.•..

f'.7

'·

I!JO 0 3/0 0 7

Honorable Robert W. Sweet
Schoolcraft v. The City llfNew York, et al.
October 26, 2012
Page 2
whkh documents require plaintiffs input in order fo litigate his case, before proceeding further
with the instant application.

PlnintiffHas·Not Met The )Jurdcn Rc:guircd In Modify a Protective Order .
Though. he has not phrascd·it as such, plaintiff is moving lor a modification of the
so-ordert:d AUomeys' Eyes Only Confidentiality Stiplllulion, however, he has not met the burden
required to do. so. According to the Sec.tmd Circuit," ·.. a district court .should not mo(lify a
protective order... 'absent a. showing of improvidence .in the gran\ vf [the·! order or some·
extraordinary circumsltmcc or compelling need."'. Securities and-Exchange Commission v.
ThcStrcct.com, 273 F.3d 222, 229 (2d Cir. 2001); see also Martindell v. International Telephone
and Telegraph Con>oration, 594 F.2d 291,296-97 (2d Cir. 1979).· Mvreover, thcrc.is.:·a_general
and strvng presumption -against access to documents sealed under protective order when !here
was reasonable reliance upon such an order," SEC, .suora at 231.
As an initial mailer, prior to its execution and endorsemtmt, all counsel had an
oppl>rtunily lu review and o~ject to the terms of the Atton>eys' Eyes Only Stipulation. In fact,
lh;)re were several drafts exchanged amongst the parties and it took nearly six months to agret: vn
the final language. In the end, all counsel, including plaintifrs, consented to lhtJ lunguf!ge of the
Stipulation. Thereafter, !he c·~ur! reviewed it and "so ordered" it without modilication on
October 5, 2012. In light ofthe negotiations between the parties conceming the-Stipulation, and
the Court's suiJscqucnt review and endorsement. of lh~< pr.up9s~ Order, plailitiff has failed to
show any improvidence in·the granting ofthe Pmtecli1<e (>rdcr.
·
. Fwther,. plaintiff !ut~ failed to dc~onstratc a compelling need. fvr access to any
materials pn>duced purswirit"'to ihc protective order at issue. h Suviige & Assocs. P.C. v. K&L
Gales LLP (In rc Teli.gsnt. Inc.), 640 F.3d 53, 59 (2d Cir. 2011), the Court implied that a pruty
seeking to modify a protective order based on "compclling:·necd"· is required to ·make such a
showing for each ·particul!.ir document it seeks to· have disclosed. Plaintiff hus staled that he
ne~ds to· view· the documents to "meaningfully ·assist counsel in prepuring fM depositions and
lormulating "further document requests." ITowever, a$· t:xplnined in more detail below; a
significant number of documents designalt;d Attorneys' Eyes Only are wholly. unrelated lu
plaintiff's .allegali(>ils, and instead, rctlcct sensitive information conceming both parties and nonparties to this action. Plaintiff has not mentioned a single particular document that he believes
was incorrectly designated as Attorneys' Eyt:s Only, nor has he made an attempt to explain why
he has a compelling need f·or any .•pe cific doc.umcnt. In .light vf the fuel that plain lilT is
r~presenlt:d by two separate law firms which should be more. than able lu represent his interests,
his· contention that he needs unfettered access to ull or tht: documents produced· by City
Defendants is unavailing.
Finally, plaiJitill's application should be denied because City Defendants
rellSl>nubly relied upon the protections afforded by the. Attorney's Eyes Ohly C1mlidenliality
Stipulation and Order in producing the subject duc.wnenis; This Court.has held that reliance may
be presumed where infonnation is dist:losed pursuant to protective order. Ionosphere Club. Inc.
v. Amt:riacn National Bank and Trust Company ofChicap;o, 1561lR_4.J4, 434 (S.D.N.Y. 1993)
(Sweet, J.), 3!Pd, 17 F.2d 600 (2d Cir. 1994) ("Absent u shvwing of improvidence iri ·tllc.grant of ·
a .... protective orde1: .or s01p.e extraordinary circumstance or compelling need ... a witness should
be. entitled tv reiy·upon !he enforceability of a protective order"); see also SEC, 273. FJd ut 229~

'''·

Cll"

·"'

u;.

a•·

.1.

LJ.",J\1 II"" I

'':·

0''

.11

-,,,_

Honorable Robett W. Sweet
Schoolcraft v. The City lii"New York, ct a!.
October 26, 2012
Page 3
30 ("if previously entered pwtectivt: orders have no presumptive entitlemt:nt h1 remain in force,
parties would resort less ollt:n to 1hc judicial system for fear that such orders would be readily set
a~ide in the future");· AT&T Corporation v. Sprint Curporution, 407 F.Jd 560,562 (2d Cir. 2005)
("rt is 'presumptively unfair-for courts to mvdily protective orders which assure confidentiality
and -upon- which 1he parties hi!ve rt:usonably relied"). The documents at issue .were produced four
days after the Cuurt su-ordered the Stipulation, 1hus, it is clear that City Detendants' relied upon
the Prvtt:ctive Order in producing the documt:nts.
··
Due to· the riature of the dvcuments desigriaied "Attorney's Eyes Only", it was
reaSonable for City Dt:fend~nt:;. to produce 1hcm os such. City-Defendants note-lin the Court's
infonnatiuni that we have not blindly designated. all -document:; produced as Attorneys' Eyes
Only. In fact, -City Defendants have produced ov~r 2,000 pages of non:confidential· documents
and approximately :i,OOO pages vf confidential documents not containing the ·Atton1eys' .Eyes
Only designation, in total; around 5,000 pages of docwnelits which may lie. shared with plaintiff.
However, the records deemed Attorneys'· Eyes ·only confidential in this matter involve·
.. employment records subject to· protection under Public Officers Law Section· 87(2)(g), ·
documomls !hut are part of ongoing investigations, 1 and documents thut are protected under the
deliberative process p~ivi)_cgc._ i\Jso.produced pursuant Ill tht; Attorneys' Eyes Only Stipulation
were criminal aud financial background checks into non-parties to .the litigation. City
Defendants· believe"thtise extremely personal files should not be made. available to plainti n· ur
uny individual party to this litigation.
Additionally, many Attorneys' ·Ryes 0J1Iy documents do-not involve Schoolcraft's
allegations regarding October 31, 2009, ·as was implied· by counsel in 1hcir motion. The
Brooklyn North Investigations Unit "("BNIU") and the lltternal Affairs Bureau ("TAB")
investigated a number of plaintiffs allegations. In conducting those irwestiga!ions, BNIU and
lAB have interViewed dozens of individuals, tnany or whom were not present at, and were· not
questioned on, "Adrian SchoolcruR's allegatiolts of retaliation or thi: incident occurring on
October 31, 2009. In fact, the only reference-many of1he recordings make to Adrian Schoolcrull
are a couple introductory questions .pertaining to whether the.. intervi.,wee knew pl~inliiT.
Addition31ly, while investigating claims of crime.. clrmplaint manipulation, JAB- investigated
specific individUals who· were. arrested by non-party ollicers lo this litigation .. These arrcstccs
have no information relevant to plaintill's claims in this matter, and 1heir security and privacy
rights . should not. be jeopardized by· -unnecessarily. removing the Attorneys'· Ryt:s Only
designations.·
.
Good cause. existed for the Atlumey's Eyes Only designatioi1S ai the ti~c they
were ln<.uJe, and contiimes to exist for the co!'lfidentiaiity dcsigll3tions now. .I'Jaintiff "eatmot
demonstrate that the· Attorneys' ·Eyes ·only ·StipUlation was improvidently· granted, that City
Defe'ndwits did not rely on that socordered Stipulution when prudu~ing documents on October 9,
20i2; nllr that plain till" has·a conipellirig need for access to any specific documents. Therefore,
plaintiff's request to modifY the Stipulation should be denied.
·

1

-The JAB investigation into ))laintiff's

s.usrensi~n, hi& claims~ofretal~ation, and the inci~dent-~ccl.lfring on Octvbt!r

.31. 2009. i•·ongning. In mn•t·Iirig~tiun•, City Defendants w·ould not have produced a single page of th<se
doc~menrs: or would.have soughi a stay oftlte cnse pending the closing oftlte investigation. However. in a GOOd
faith elfoit to move this litigation along, City Defrm<l:tnb produced the d(•cumcnt.> oub]oct to the •pplic•blo
conlidcnti•lity do•ignations.
· ··

II II I

a··

·"

..,

~·

., .

.t;

...

'·

11411111-'1 1111'

Ilunorubl~ Rubert W. Sweet

Schoolcrafi.v. The City of New York. et al.
October 26,2012
Pagc.4
Confidential Discovery Documents Were Produced to the Villllll;e Voice·
Though muny, iflllll all, of the documents would have been designated Attorneys'
Eyes Only regardless of the particular circumstances of the case,. the existeilc~: :of a leak to the
media in this matter milkes the continued existence of !tn Attorneys' Eyes Only Stipulation
essential. As the Court rnuy recall, in a Village .Voice article dated .March 7; 2012, reporter
Gmh11m Rayman indicated that he was in possession of a. 95-pnge Q~lity .Assunmce Division
("Qi\0") Report. lurthennore, only two dttys lultir on March 9, 2()12, a New York Times article
reporting on the Village Voice article slated. that "[ujsing. the state's Freedom of Information
Law, Mr. Rayman of The Village Voice s·ought the report, which wns completed in June 2010.
The police denied his request.. He appealed. They denied it u~a.iti. He linally obtained a copy
through back channels and published ail ·article this week." 2, (emphasis added). The QA!J
Report remained conlidentjai within NYPD cust.ody for nearly two yeilrs, however, only ·months
after its disclosure during discovery, it wflli published.4 During ~- ctmference on or uboul March
28,2012, Your Ilonor granted City Defenllanls' application lo conduct discovery on thc"source
ol' leak. To llah:, the issue has not been resolved.
Plaintiff contends that because he has denied leaking the documents both in un
affidavit and during his deposition, that is proof positive !hut he did not prvvide the media with
the :documents. s. City Defendants ure nt•l u.~sured by either, Despite plaintitl's contentions, he is
!he only party iri.lhis ligation with an apparent prior.rclationship with Urahnm Rayman. ill any
cvci1l, City Defendants rcspc.ctfully·submit that iri·order to·decrease the likelihood of future leaks
of confidential information, the field of individuuls with access to such documents should remain
.limited to. the attomeys.hundling this muller.. In lighlul' plainlill's inability to demonstrate any
compelling need l(•r any speeilic documont, there docs not appear. to be. any reason to modify the
proicctivc order.

' Telling lhu Truth Like Cr•zy, ·N.Y. Times, Jim . Dwyer, Mnrch ~. 2012, avnilable ot
htt p:tiwww :nyri mes.com/20 12103/09/n yregion/officer-sues;; ln inu ng-police-ret.1 linti on-for-t mtll~l!.i.!l&b.t~l? 1""2~':!'_1'=nyr)'_gi~_!J.
. .
1
The NYPD ha• conlinncd that Graham Rayman made two FOJL requests rei~Lcd to the Schoolcraft maner and thm
no records were provided·to Mr. Rayman pursuilllt to these requests.

• City dcfcnd~nls ·nutc thm two Y"""' ago, Adrian Schoolcraft provided Rayman !he digital nndio rocordings
referenced in the inslantlnwsuit, and spoke with him at lensth regarding the ollegotioius.
5

Plaintitl" further"· ttJicgc::J lhitl bt:Causc City Du"J'Cndants -h8Vc bcun -umt.hlc.to unl:uvur evitloncc

:li1ut

ALiri~:~n

Schoolcraft wns involved. in the QAD leak, plnintiff should·be.given acce.. t.o Attorneys' !!yes Only confidential
infbnnation. ·However, to the- extent that plaintiff wa.~: involved,-plai~tiff and Graram· Rayman are the only
in-divi.duaiS. ~~~~would have direct c~idcnc(l of the leak. Graharn Rayman is pr~tcCtcd from subpoCQil power ofthi!l

Court by the joumalist's privilese, leaving plaintiffas. the only other. potenti~l source of infonnation. Plaintiff has
refused lo provic.Jo Cily DcifcndHnl!j \Yilh uny. dotumcuts that he is In·· 'pmc.su~sion.· uf tlud ·wuuld n:floct hi~
communications with tile media in tllis matter.. Indeed,. in response to discov<>r.y demonds for documents reflecting
~my ~n.mmunic~t.tivn~C \~ith any 1nedi~ outlet regard_ing the aiJCgatinmc ofthe instant·law!'uit, plaintHl'responded that it
w•s "vag(\e, nmbiguous, overbrong and unduly bun:lensome,to the. extent tho! it seeks documents that arc more
readily obtained from anotller simrce." Plaintiff cimnot use his silence boUl a sword and a shield, by denying that
City Defendants have. any evidence, but also refusing lo·providc responses !o Oi.>~umcnt Rct1ucsts !h•t might rc•c•l

as

relevant evidence.

·

.

.•

..,

r.

..

··~

'i!&l'ol
Q'" .

Honorable Robert W. Sweet
Schoolcraft v. 11u: City or New York, et al.
October 26, 2012
Page 5
PluintiffCnnnot Guarantee the Privacy ofJlucument. Provided to Him
.
During his deposition, when asked_about the leaked docwnenl~. plaiutiii slated
that his counsel had given him a copy of the- QAD Report on a CD, which plainti1I has kept in
the house.lhat he shares with his futher. When asked whether plaintiti's father had access to the
CD;- plaintiff claimed that his father Willi "technically insuftlcicnt when it comes to computers."
llowever, according Ill at1eust one internet soure·c, plaintiff's·father has sent emuils to journalists
· since its· early as November 13, 2009, thus, demonstrating that plain!ilri' father is not a.s
technically-inept as "plaintiff ~;ll!il)ls, 6 • SimplY. stu!t:d, riHiving lor:vyard, ~ity D~fcndants have no.
good faith basis to believe· that docLJmenls given to plaintiff would be -protected from further
disclosure,
·
·

Conclusion .

. ...

the Protective Order to whith ;111 partie~ stipuluted helorc its cntry.rcpr~cnts ·a
pructicul und erficienl ~olution to the many knotty and time-consuming disputes that the partie~'
conlidcnliality concerns spawn in complex litigation such as this. Thut Order wa.~ not entered by
. the_-, Court "improvide_ntly" and there are no "extraordinary circumstances" warranting its
modification now. ll1e Court had·"good cause" to enter that Order on October 5, 2012 and
''good cause" supportS tiiil! Order today. Therefore, for the reusons stated herein, City
Defendants respectfully request that the Court deny plainlirl's request to modify the so-ordered
Attorneys' .Eyes Only Stipulution; <tllnwing plaintiff,a9ccss to.th_e ~ocuments produced subject to
it.
.
. . ..
. . . .. .
.
.
. CityDcfcndants thank th~-Court for its coiJsideration.

Ro~miUOO
Suunna -Publicker · Assistant-Corporation Counsel
cc;

Jon L. Norinsberg (By fllX 212-406,6890)
Atromey fur Plaintiff
.225 Broadway, Suite 2700 ·
New York, Ne"w York 10007.
Cohen & Fitch, LLP (lly Fax [phone])
Gerald Cohen
·
Joshua Fitch
Attorneys for Plaintiff
233 'Broadway, Suite 1800
New York, New York 10279

'Adrian Schootcroft: Now t!'s Gening Serious, NYPD Confideminl, Leonard Levin, January 31·, 2011, available ar
hl\p://nypdcontldentiat.com/cotumns/20 II Il-l 0 131.hbnl.

.....

\1 U I II II I

'·

___ . . . . . . . . . .
"!

.....

QQ'<II.L~J

··-

·~

...

·'·

Honllrabl~

Robert W. Sweet
Schoolcraft v. The City ofNew York; et al.
October 26, 2012
!'age 6
Gregory John R.adomisli (By l'a15 212-949-7054)
MARTIN CLCARWATI;R lfc

B"r-1. LLP

Arrorneys for Jamaica Hr1.1pital Medica( Center
220 Ea~t 42nd Street 13th Floor
New York, N\' 10017

..

Briun.Lee (By Fax [phone]).
IVONE, DEVIN.E & mNSEN, LLP
A(torneys for Dr.. T.mk r.~alwv
2001 Marcu~ Avenue, Suite N 100
Lake Success, New York II 042
Bruce M. Brady{By Fax [phone])
CALLAN,KOSTER, BRADY & BRENNAN, LLP.
Atromeys for T.illian Aldana-Bernier

1 Whitehall Street
New York, New York 10004
Walter Aoysius Krelz, Jr. (By Fax [phone])

SEIFF KRETZ & ABERCROM.l.liE
Artdrney for Defendant Mauriello
444 Mndisori A venue, 30th. Floiir ·
N~w York, NY-10022 ·

..,

r.JII'•

.t;

~007/007

'·

q•·

.t.

r.•.

..

r.r·

-~

o·

·'•

''" .

oo··

lf.IUUJ./l/01
-~

THE CITY OF NEWYORK

LAW DEPARTMENT
1011 CllllltCH STRE~T
YOitK, N~ 10007

NI~W

FACSIMILE TRANSMISSION

Suzanna Publicker
phonl (212) 788·1103

Honorable Robert W. Sweet
United States District Judge
Southern District ofNew York

FROM:

FAX#:

212-805-7925

DATE:

OCTOBER 26,2012

TO:

Jon L. Norinsberg
Attorney jo,. Plaintilf.

TO:

Cohen & Fitch, LLP
Attorney for Plaintiff

FAX#:

212-406·6890

FAX#:

212-406-23!3

TO:

email: [e-mail]

Gregory John Radomisli
TO:

MARTINCLEARWATf>R & BEIA.Ll.P
Attorneys for Jamaica Hospital Medical
Center

tax: [phone]

TO:

FAX#:

212-949-7054

TO:

llrian Lee
IVONE, DEVINE & ffiNSEN, U ,P
A.ttomey>for Dr. l>·ak lsalwv

TO:

fAX II:

516-352-4952

f'AX#:

FAX#:

. Bruce M. Brady
CALLAN, KOSTER, BRADY &
BRENNAN, LLI'
Attomey.<for Lillian Aldana-Bernier

212·248-6815
Walter Aoysius Kret7., Jr.
SEIFF KRETZ & ABERCROMBffi
Attomey for .Defendant MaurM/o

2 I 2-371-6883

You should receive 7 poge(s), including 1his o11c.
Ple.1se contact me if you do· not receive all pages.
This fa<$imile contains CONFJOF.NTII\L TNFORMI\TION which may al~o be J.F."OALT.Y PRIVII.F.GF.D. 11 is
intended only for usc of the addrcsscc(s) nmncd above. If you are neil her the inlcndcd recipient of this fncsimilc nor
the employee or agent responsible for delivering it to the intended recipien~ you are hereby notified that
di~scminating liT C(lpying thi:,: fac~imile is prohibited. rr yvu huvc received lhiij facsimile in error, please not if)' this
office by tele~hone nnd rerum dte ?.r}gin~_to t~-".~dress set forth by the ~-·~·-~-~~t<:• Postll.l~::Vice .• I~.~!~~·

Re:

Schoolcmll v. The City oi'New York, et ul., 10-CV-6005 (RWS)

LAW OFFICE OF

NATHANIEL

B.

SMITH

ATTOB.NEY AT LAW

111 BBOADWAY

NEW YoBx. NEw Yo:&:x 10ooe
NATBANIEL B. SMITH

TEL: (212} 227-7062
FAX: [phone]

August 30, 2013

Ms. Suzanna P. Mettham
Law Department
100 Church Street- Room 3-203
New York, New York 10007
Schoolcraft v. The City ofNew York, et al.,
10-cv-6005 (RWS)

Dear Ms. Mettham:
I am writing this letter to again request that you re-consider your position on
the designation of documents in the City Defendants' document productions as
appropriate for the "attorney-eyes-only" limitation. As I mentioned to you on July
25 1h and reiterated to your co-counsel, Ryan Shaffer, on August 22, 2013, the City
Defendants have improperly designated, among other things, witnesses' statements
and statements by named defendants as subject to the attorney's-eyes-only
confidentiality order. As a result, the attorneys for the plaintiff in this action are
prohibited from showing the plaintiff the statements of witnesses and parties,
.thereby improperly interfering with the prosecution of this action. The documents
that have been improperly so-designated consist of the NYPD's internal
·investigations into the plaintiff's allegations and those documents have been Batesstamped NYC 4588-6112. I also note that none of the provided information is of a

EXHIBIT

2

LAW OFFICE OF

NATHANIEL

B.

SMITH

truly sensitive nature. In addition, the actual recordings of the interviews of these
witnesses and parties have also been improperly designated as subject to the
attorneys' -eyes-only limitation. The plaintiff has a right to know what the
witnesses and defendants have stated, and a motion on these grounds should not be
required.
In addition, I am also writing to again request that you arrange for the return
of all of the plaintiffs personal property that was confiscated by the NYPD,
including without limitation his digital recorder and the other items of his personal
property listed in the NYPD's voucher, which has been Bates-stamped D000500.
As I have told you in the past, there is no basis for refusing to return to the plaintiff
his personal property, and a motion to compel the return of his property also should
not be required.
Finally, several documents produced by your office contain improper
redactions. Those documents have been Bates-stamped D000029-30, D000247252, NYC 4700-16, 4723-38, 4754-56 4787, 4792-4830, 4838-4871, 8596-97,
8702-14, 9123-32 & 9368-71. Please provide these documents to me in
unredacted form.

~~
Nathaniel B. Smith

cc: All Counsel
Via Email

UNITED STATES DISTRICT COURT
SOUTIIERN DISTRICT OF NEW YORK

---------------------------------------------------------------)(
ADRIAN SCHOOLCRAFT,
10--cv-6005 (RWS)
Plaintiff,
-against-

ORDER

THE CITY OF NEW YORK, et a!,
Defendants.

--------------------------------------------------------------)(
Sweet, J.
Plaintiffs motion by letter dated September 9, 2013 is granted to the eJCtent
that the attorney's eyes only limitation is hereby lifted as to the discovery already
produced and to the eJCtent that the defendants are ordered to return to plaintiff all
of the plaintiffs personal property in the possession or control of each defendant,
and the City Defendants' motion by letter dated August 21, 2013 is denied.
It is so ordered.

New York, NY
September__, 2013
ROBERT W. SWEET

!.
«

"'
w

~

~

>"'

<(!
~

«

EXHIBIT

L