Schoolcraft v. The City Of New York et al

Filing 177

LETTER MOTION for Local Rule 37.2 Conference In Opp. to Plaintiff's 09/27/13 Letter Motion re AEO Designations addressed to Judge Robert W. Sweet from Suzanna Mettham dated October 1, 2013. Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Christopher Broschart(Tax Id. 915354 Individually), Timothy Caughey(Tax Id. 885374 Individually), Timothy Caughey(Tax Id. 885374 in his official capacity), Kurt Duncan(Shield No. 2483, Individually), Kurt Duncan(Shield No. 2483 in his official capacity), William Gough(Tax Id. 919124, Individually), William Gough(Tax Id. 919124, in his Official Capacity), Thomas Hanley(Tax Id. 879761, in his Official Capacity), Thomas Hanley(Tax Id. 879761, Individually), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Elise Hanlon(individually), Shantel James(Shield No. 3004 in his official capacity), Shantel James(Shield No. 3004 Individually), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Theodore Lauterborn(Tax Id. 897840, Individually), Michael Marino, Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370, Individually), Robert W. O'Hare(Tax Id. 916960, Individually), Robert W. O'Hare(Tax Id. 916960, in his Official Capacity), Frederick Sawyer(Shield No. 2576 in his official capacity), Frederick Sawyer(Shield No. 2576, Individually), The City Of New York, Timothy Trainer(Tax Id. 899922, in his Official Capacity), Timothy Trainer(Tax Id. 899922, Individually), Richard Wall, Sondra Wilson(Shield No. 5172, in her Official Capacity), Sondra Wilson(Shield No. 5172, Individually).(Mettham, Suzanna)

THE CITY OF NEW YORK

LAW DEPARTMENT

MICHAEL A. CARDOZO
Corporation Counsel

100 CHURCH STREET
NEW YORK, NY 10007

SUZANNA P. METTHAM
phone: [phone]
fax: [phone]
email: [e-mail]

October 1, 2013
BY ECF
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: Schoolcraft v. The City of New York, et al.
10-CV-6005 (RWS)
Your Honor:
I am the Assistant Corporation Counsel in the office of Michael A. Cardozo, Corporation
Counsel of the City of New York, assigned to represent the City Defendants in the abovereferenced matter. City Defendants write in response to plaintiff’s September 27, 2013 motion
seeking to expand the Court’s ruling on September 25, 2013 regarding the removal of certain
documents from the Attorneys’ Eyes Only (“AEO”) Stipulation into the Confidentiality
Stipulation, so that plaintiff could view those records. City Defendants respectfully request that
the Court deny plaintiff’s letter motion in its entirety as plaintiff’s broad and unclear language
would remove the AEO designation from more documents than this Court has already ordered.
City Defendants also respectfully request until Wednesday, October 9th to respond to the Court’s
request for further briefing on the issue of whether this Court has jurisdiction to order City
Defendants to return any items and if so, whether City Defendants should be compelled to return
any of the items sought by plaintiff. City Defendants asked for plaintiff’s consent this morning,
but have not heard from plaintiff at the time of this writing.
By way of background, at plaintiff’s deposition on Thursday, September 26th, plaintiff
made a broad pronouncement that at the oral argument the preceding day, this Court had
removed the AEO designation from all statements made by witnesses to IAB. I indicated to
plaintiff at that time that his belief was incorrect as it was entirely too broad, based on my
recollection of the oral argument, which is further supported by the transcript. Plaintiff asked me
to clarify which documents I believed were still protected by the AEO designation, and the
undersigned responded that I believed every document that City Defendants had listed in the
September 18, 2013 letter to this Court specifically by Bates No. under the three categories
discussed in Court were still covered by the AEO stipulation. Plaintiff alleged that my list of
documents in the letter to the Court was not a clear enough representation of which documents
were still subject to the AEO stipulation; however, the undersigned is at a loss to know what

Honorable Robert W. Sweet
Schoolcraft v. The City of New York, et al.
October 1, 2013
Page 2
would be more clear that listing documents believed to be subject to the AEO stipulation by
those documents’ Bates range. Plaintiff’s letter motion followed.
As I represented to this Court on September 25, 2013, City Defendants agreed on
September 16, 2013 to lift the AEO designation, and allow instead for a confidential designation,
for all statements made by witnesses in this action to IAB with relevant information to the
subject matter of this lawsuit. However, a number of witness interviews by IAB involved only
claims of non-party arrestees, which this Court ordered on September 25th would not have to be
produced to plaintiff. Therefore, those interviews of members of the service (none of whom are
defendants or even identified witnesses to this matter) that only involve claims unrelated to the
events of October 31, 2009, and plaintiff’s ensuing hospitalization should remain AEO as
previously ordered by the Court. Should plaintiff believe that any of the remaining AEO
documents are improperly designated, plaintiff must, as has been Ordered by this Court on no
less than three separate occasions, specify by Bates range to which documents he believes he is
entitled, first to City Defendants, and then only after an agreement cannot be reached, should
plaintiff burden this Court with a motion.
For the sake of clarity and to hopefully aid plaintiff in his efforts, City Defendants again
identify the documents to which City Defendants believe the AEO designation is still applicable:
Non-Party Arrestees: Bates Nos. NYC3822-3823, NYC4657-4659, NYC5152-5248,
NYC5392, NYC5444-5449, NYC5451, NYC5470, NYC5583-5604, NYC5646-5647,
NYC5712, NYC5761-5766, NYC5806-5807, NYC5843-5844, NYC5888, NYC5896,
NYC5923, NYC5925, NYC5949-5961, NYC5986, NYC5989, NYC5993-5994, NYC6004,
NYC6006-6007, NYC6012-6015, NYC6051-6077, NYC6106-6112, NYC7567, NYC7571,
NYC7676-7746, NYC7748-7749, NYC7766, NYC7888-7889, NYC7892-7942, NYC79908006, NYC8015-8048, NYC8078-8091, NYC8093-8100.
Disciplinary Records of Defendant Officers: Bates Nos. NYC5458, NYC5393, NYC56804761, NYC4787-4834, NYC5249-5338, NYC5363-5364, NYC5375-5376, NYC5424,
NYC5456, NYC5457, NYC5461-5465, NYC5467, NYC5473-5475, NYC5478-5479,
NYC5494-5495, NYC5512-5582, NYC5641-5645, NYC5655-5656, NYC5809-5812,
NYC5991, NYC5605-5625, NYC5650-5653, NYC5804-5805, NYC5808, NYC5840,
NYC5868, NYC5903-5904, NYC5962-5963, NYC5967-5968, NYC5976-5980, NYC6000,
NYC6025-6027, and NYC7575-7670.
Non-Party Sensitive and Confidential Information: Bates Nos. NYC4660-4679, NYC48354837, NYC5397-5398, NYC5881-5883, NYC5890-5892, NYC5908, NYC5917-5819,
NYC5930-5931, and NYC6039.
City Defendants respectfully request that the Court order plaintiff to identify which items
out of the abovementioned list he believes he must be given access to, and what his client’s
compelling need for each document is.
Finally, City Defendants note that they are not able to inspect the items in the possession
of the NYPD that have been requested by plaintiff until the afternoon of October 3rd, and the
undersigned will be out of the office on Friday, October 4th. Therefore, City Defendants
respectfully request until Wednesday, October 9th to respond to the Court’s request for further
briefing on the issue of whether this Court has jurisdiction to order City Defendants to return any

Honorable Robert V/. Sweet
Schoolcraft v. The City of New York. et al.
October 1,2013
Page

3

items and if so, whether City Defendants should in fact be compelled to return any of the items
sought by plaintiff.

City Defendants thank the Court for its consideration.
Respectfully submitted,

Suzanna P. Mettham
Assistant Corporation Counsel
cc

Nathaniel Smith (By ECF)

Attorneyfor Plaintiff
Gregory John Radomisli (By ECF)
MenrrN ClpRnwarpn & BBr.r. LLP
Attorneys for Jamaica Hospital Medical Center
Brian Lee (By ECF)
IVONE, DEVINE & JENSEN, LLP
Attorneys for Dr. Isak Isakov
Bruce M. Brady (By ECF)
CALLAN, KOSTER, BRADY & BRENNAN, LLP
Attorneys þr Lillian Aldana-Bernier
Walter A, Kretz (By ECF)
SCOPPETTA SEIFF KRETZ & ABERCROMBIE
Attorney þr Defendant Mqurie llo