Schoolcraft v. The City Of New York et al
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)
d 10/04/12 Page 1(W 9
UNITED STATES D IM.
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
JON L. NORINSBERG
AITORNEY AT LAW
NEW YORK, NEW YORK 10007
5938 fiELDSTON ROAD
BRONX, NEW YORK 10471
TEL (212) 791-5396
FAX (212) 406-6890
ION L. NORINSBERG
October 12, 2012
I00 Church Street
New York, New York 10007
Attn: Suzanna If Publicker, Esq.
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
Thank you for your attention to this matter.
Very truly yours,
Cohen &.Fitch, LLP.
The Woolworth Building
New York, New York 10279
Publicker, Suzanna [firstname.lastname@example.org]
October 16, 2012 8:58AM
Subject: RE: Schoolcraft v. City of New York
Defendants do not consent
From: Nicole Bursztyn [mailto:Nicole@norinsberglaw.com]
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.
Law Offices oF Jon L. Norinsberg. Esq.
MOl:€ = /"EMeRY
FILE f'll ....?44
STATION NAME/TEL NO.
- ***** -
LAW OFFICES OF
JON L. NORINSBERG
225 BROADWAy I SUITE 2700
NEW YORK, NEW YORK 10007
Honorable Robert W. Sweet
Suzanna PubIicker, Esq.
Cohen & Fitch
Gregory John Radomisli, Esq.
Martin Clearwater & Bell, LLP
Brian Lee, Esq.
Ivone, Devine & Jensen, LLP
Bruce M. Brady, Esq.
Callan, Koster, Brady & Brennan, LLP
Waller A. Kretz, Jr., Esq.
Scoppena SeiffKreiZ & Ab;J, II. ('IIRIJI)UI
I00 CHURCH STRiliiT
NEW YORK. NY 10007
phono: ('ZJ2) 78&-1103
r.. : (21Zl 788-9776
October 26, 2012
BY FAX (212) 805-7925.
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.
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:1bjeclion 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
I!JO 0 3/0 0 7
Honorable Robert W. Sweet
Schoolcraft v. The City llfNew York, et al.
October 26, 2012
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 Pmtecli1rdcr.
. 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~
LJ.",J\1 II"" I
Honorable Robett W. Sweet
Schoolcraft v. The City lii"New York, ct a!.
October 26, 2012
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
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.
-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 oub]oct to the •pplic•blo
II II I
Ilunorubl~ Rubert W. Sweet
Schoolcrafi.v. The City of New York. et al.
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
' 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.
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.
Plaintitl" further"· ttJicgc::J lhitl bt:Causc City Du"J'Cndants -h8Vc bcun -umt.hlc.to unl:uvur evitloncc
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
Honorable Robert W. Sweet
Schoolcraft v. 11u: City or New York, et al.
October 26, 2012
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
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; R & BEIA.Ll.P
Attorneys for Jamaica Hospital Medical
tax: (212) 788-9776
IVONE, DEVINE & ffiNSEN, U ,P
A.ttomey>for Dr. l>·ak lsalwv
. Bruce M. Brady
CALLAN, KOSTER, BRADY &
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