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)

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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 (212) 791-5396 COHEN & FITCH, LLP Gemld Cohen (GC04!4) Joshua Fitch (JF2813) Attorneys for Plaintiff 233 Broadway, Suite I 800 New York, NY 10279 (212) 374-9115 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 (212) 788-1103 ~~ 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 bbrady@ckbblaw.corn -y------- Walter A. Kretz, Jr. ~ SCOPPE'ITA SElF!' KRETZ&_ ABERCROMBIE Attorney for Defendant Steven Mauriello 444 Madison Avenue, JOth Floor Now York, NY 10022 wakrett@selffkretz.ecm 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 (212)697-3122 -/7. ~P~ ~~--!VONE, DEVINE & JENSEN, LLP Attorneys for Defendant !SAK JSAKOV, M.D. 2001 Marcus Avcnua, Suite NlOO Lake Success, New York 11042 (516)326-2400 brianlee@idj! 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: Phone: (212) 788-1103 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 BRONX OFFICE 5938 TEL (212) 791-5396 FAX (212) 406-6890 fiELDSTON ROAD BRONX, NEW YORK 10471 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 BRONX OFFICE 5938 fiELDSTON ROAD BRONX, NEW YORK 10471 TEL (212) 791-5396 FAX (212) 406-6890 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 [] Sent: October 16, 2012 8:58AM To: Nicole Bursztyn Subject: RE: Schoolcraft v. City of New York Defendants do not consent From: Nicole Bursztyn [] 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 (212) 805-7925 Suzanna PubIicker, Esq. Corporation Counsel (212) 788-9776 Cohen & Fitch (212)406-2313 Gregory John Radomisli, Esq. Martin Clearwater & Bell, LLP (212) 949-7054 Brian Lee, Esq. Ivone, Devine & Jensen, LLP (516) 352-4952 Bruce M. Brady, Esq. Callan, Koster, Brady & Brennan, LLP (212) 248-6815 Waller A. Kretz, Jr., Esq. Scoppena SeiffKreiZ & Ab<rcrombie (212) 371-6883 FROM: Jon L. Norinsberg, Esq. Phone: (212) 791-5396 Fax: (212) 406-6890 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 (212) 805-7925 Suzanna Publicker, Esq. Corporation Counsel (212) 788-9776 Cohen & Fitch (212) 406-2313 Gregory John Radomisli, Esq. Martin Clearwater & Bell, LLP (212) 949-7054 Brian Lee, Esq. lvone, Devine & Jensen, LLP (516) 352-4952 Bruce M. Brady, Esq. Callan, Koster, Brady & Brennan, LLP (212) 248-6815 Walter A. Kretz, Jr., Esq. Scoppetta Seiff Kretz & Abercrombie (212) 371-6883 FROM: Jon L. Norinsberg, Esq. Phone: (212) 791-5396 Fax: (212) 406-6890 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: 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. 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., 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,·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 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 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·· '· 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 212-406-6890) 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:// 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 516-352-4952). IVONE, DEVIN.E & mNSEN, LLP A(torneys for Dr.. r.~alwv 2001 Marcu~ Avenue, Suite N 100 Lake Success, New York II 042 Bruce M. Brady{By Fax 212-248-6815) 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 212-371-6883) 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: Gregory John Radomisli TO: MARTINCLEARWATf>R & BEIA.Ll.P Attorneys for Jamaica Hospital Medical Center tax: (212) 788-9776 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: (212) 346-4665 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

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