Schoolcraft v. The City Of New York et al

Filing 184

LETTER MOTION for Local Rule 37.2 Conference Reply to Pl. Opp. Dated 10/15/13 (Dkt. No. 181) addressed to Judge Robert W. Sweet from Suzanna Mettham dated October 16, 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). Return Date set for 10/16/2013 at 12:00 PM. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(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 16, 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: (1) in support of their October 9, 2013 motion
regarding plaintiff’s request for the return of certain items in the possession of the NYPD; (2) in
support of their October 9, 2013 motion requesting that the Court lift the injunction dated June
28, 2013, enjoining further administrative proceedings by the NYPD against plaintiff; and (3)
requesting permission to present a sur-reply to ask that the Court deny plaintiff’s new request to
modify the existing Attorneys’ Eyes Only Stipulation and Protective Order.
1. Plaintiff’s Demand for the Return of Certain Property
a. Plaintiff Abandoned His Claims Regarding the Rifle and Rifle Accessories
Plaintiff has failed to address in any manner City Defendants arguments regarding the
rifle and rifle accessories in the possession of the NYPD. As such, City Defendants respectfully
request that the Court consider Plaintiff’s allegations concerning that claim to be abandoned.
b. Plaintiff’s Request for Sanctions Should Be Denied
With regard to plaintiff’s recording device, City Defendants heeded this Court’s plea for
the triumph of “common sense” and agreed to return the recording device regardless of the case
law permitting the City Defendants to maintain custody of the items. See 9/25/13 Tr. of Court
Conf. at 20:15-22; City Defendants’ Motion dated 10/09/13 at 1 (Dkt. No. 177). Demonstrating
that no good deed goes unpunished, plaintiff attempts to argue that by agreeing to return
Schoolcraft’s Olympus DS-50 recording device, “City Defendants admit that their arguments
about their right to keep the recorder and the Court’s lack power to order its return were not
substantially justified.” Pl. Memo. dated 10/15/13 at 12 (Dkt. No. 181). Plaintiff then asks that
this Court sanction the undersigned for taking “an unjustified discovery position.” This argument

Honorable Robert W. Sweet
Schoolcraft v. The City of New York, et al.
October 16, 2013
Page 2
is preposterous. City Defendants never conceded that they do not have the right to maintain
custody of the recorder or that the Court has the authority to order City Defendants to return said
recorder. City Defendants respectfully request that the Court deny plaintiff’s request for
sanctions against the undersigned.
c. Plaintiff’s Request for a Sworn Statement About Attempts to Locate
Property Should Be Denied
Plaintiff for the first time requests that the Court order City Defendants to “provide a
sworn statement by a responsible individual as to the whereabouts and existence of all of Officer
Schoolcraft’s property taken from his person, his home and from his lockers at the 81st Precinct.
Among other things, according to plaintiff, the statement should affirmatively state that the
second recording device and all papers, including crime reports that were at Officer Schoolcraft’s
home or in his locker, have been searched for and located or not located.” As an initial matter,
plaintiff never broached this issue at any time with City Defendants, and thus it is not properly
before this Court as plaintiff has again failed to meet and confer with City Defendants before
bringing a matter to the attention of the Court. Regardless, plaintiff’s request is improper as it
assumes facts not established, would not lead to the discovery of admissible evidence, is vague,
and further, depositions provide a more reasonable means to obtain the information sought.
City Defendants do not dispute that certain items were removed from plaintiff’s
apartment on October 31, 2009 and thereafter on November 10, 2009. These items have been
vouchered and invoiced as property, and those invoices and records have already been provided
to plaintiff. However plaintiff now claims that in addition to the vouchered evidence, defendants
in this matter removed further documents and items from plaintiff’s apartment and locker, a fact
which City Defendants dispute.
To the extent plaintiff believes that items were taken from his apartment, plaintiff has at
his disposal the appropriate means to inquire further into this issue: deposition testimony. With
regard to plaintiff’s lockers that were in the 81st Precinct, plaintiff was informed a month ago that
the lockers were “reassigned to other police officers currently assigned to the 81st Precinct.[…]
Upon information and belief, an Internal Affairs Bureau Investigation has been launched to
determine who opened those lockers, when, and for what reason. City Defendants will produce
the results of that investigation when it has concluded.” See City Defendants’ Letter dated
September 18, 2013, annexed hereto as Exhibit A. To the extent that any documents were taken
out of plaintiff’s lockers, upon information and belief, this matter will be looked into further by
IAB. Until the IAB investigation is concluded, City Defendants cannot state with any certainty
where the contents of his locker, if any, may be.
Moreover, City Defendants note that plaintiff has not alleged that any of the items that
were allegedly in his locker in the 81st Precinct as of October 31, 2009 were relevant to this
lawsuit. At plaintiff’s deposition on September 27, 2013, he admitted that he believed he had
some complaint reports in his locker on October 31, 2009, but that reports that he believed were
relevant to his claims of misconduct had already been copied and produced to QAD before that
date.1 Therefore, to the extent that plaintiff claims any documents are missing from his locker, he
1

Complaint Reports are records taken by police officers of victims of crimes. City Defendants state that
even if complaint reports were removed from plaintiff’s locker at the 81st Precinct, the paperwork and

Honorable Robert W. Sweet
Schoolcraft v. The City of New York, et al.
October 16, 2013
Page 3
has already admitted that copies exist for the ones that he believes are arguably relevant to this
lawsuit. As City Defendants have already agreed to produce the results of the IAB investigation,
and any items sought by plaintiff are irrelevant in any case, plaintiff’s request for a sworn
statement regarding “the whereabouts and existence of all of Officer Schoolcraft’s property taken
from […] his lockers at the 81st Precinct” should be denied.
2. The Motion to Lift the Injunction Should Be Granted Because City Defendants Have
Complied With One of the Court’s Two Methods for Ending the Injunction
In the Court’s June 28, 2013 Memorandum and Opinion granting plaintiff’s request for
an injunction to stay the Departmental trial of Adrian Schoolcraft this Court explicitly stated that
the injunction would remain in place “pending the resolution of this action or a determination by
the City that its departmental proceeding will not have a preclusive effect on the issues raised in
this action.” 06/28/13 Order at 19-20 (Dkt. No. 157). As City Defendants have agreed to waive
the defense of collateral estoppel in this specific case, City Defendants have complied with one
of the Court’s two methods for ending the injunction ordered by the Court on June 28, 2013 as
the Departmental trial will no longer have a preclusive effect on the issues raised in this action.
Though City Defendants have clearly met the Court’s requirements for ending the
injunction, plaintiff now argues that the stay should not be lifted because counsel doesn’t have
enough time to simultaneously conduct both an administrative investigation and litigate the
instant mater. This is an insufficient basis on which to oppose the City’s request, especially given
the fact that plaintiff has five attorneys who have made appearances on his behalf in this matter,
not counting plaintiff’s prior counsel of Cohen & Fitch and Jon Norinsberg. Given the large
number of attorneys at his disposal, it is unclear why plaintiff could not proceed with an
administrative trial and discovery in this litigation. Further, despite plaintiff’s dubious claims
regarding the City’s motivations for lifting the stay,2 City Defendants believe that a stay in this
case has already prejudiced defendants, and will continue to do so as long as the stay remains in
effect. There is no doubt that the NYPD has a compelling interest in resolving any disciplinary
lockers are the property of the NYPD and should not be returned to plaintiff. For example, complaint
reports, without exception, contain confidential and sensitive information regarding victims and
perpetrators of crimes, and further, complaint reports often contain information that may be sealed
pursuant to NYS Penal Law §§ 160.50 and/or 160.55.
2

Plaintiff asks the Court to “take judicial notice of the fact that the political landscape of the City
Defendants and the NYPD is changing. The results of the September 2013 Democratic Primary for New
York City Mayor have made clear that the current administration of the NYPD will likely be changing by
the end of this year. Hence it seems clear that the only reason why the NYPD is now so eager to try
Officer Schoolcraft has nothing to do with the genuine needs of the NYPD but with its current
administration’s attempt to discredit Officer Schoolcraft with an “adjudication” before the end of the
year.” Pl. 10/17/13 Memo. at 11 (Dkt. No. 181). While the Court may take judicial notice of the fact that
Mayor Bloomberg’s tenure will end on December 31, 2013, this Court cannot take notice of plaintiff’s
subjective prophecies of what the next Mayor of, whose election has yet to take place, may or may not do.
Federal Rule of Evidence 201(b) defines a fact acceptable for judicial notice as: “one not subject to
reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b). Electoral prognostication clearly does not fit into either
of those categories.

Honorable Robert W. Sweet
Schoolcraft v. The City of New York, et al.
October 16, 2013
Page 4
and employment issues involving its officers. City Defendants have moved to lift the stay at this
time because it has prevented the NYPD from resolving the disciplinary issues with plaintiff in
an efficient and prompt manner, and continues to do so. Therefore, as City Defendants have
agreed to waive the only barrier presented by this Court to an administrative trial, collateral
estoppel, this Court should lift the June 28, 2013 injunction.
3. Plaintiff Has Not Met His Burden to Modify the Current Attorneys’ Eyes Only
Stipulation and Protective Order
Plaintiff originally drafted a motion dated September 27, 2013 asking that the Court
“issue and enter an order that the attorney’s-eyes-only limitation is lifted for all documents
pertaining to statements by witnesses and individual defendants that are relevant to Officer
Schoolcraft's claims in this action.” Pl. 09/27/13 Letter Motion at 1. City Defendants opposed
that motion on October 1st; however, plaintiff’s October 15, 2013 memorandum requests further
relief not addressed in that original September 27, 2013 letter motion, to wit, that “the Court
should rule that the only materials that are properly the subject of the AEO limitation are the
designated disciplinary records of the individual defendants (subject to a later motion by the
plaintiff showing that the disciplinary records are relevant to the issues in this case), and the
criminal and financial background checks conducted by the NYPD of Officer Schoolcraft’s
father and sister”. Pl. 10/17/13 Memo. at 12 (Dkt. 181). To the extent plaintiff has presented new
requests for relief in his October 15th reply, City Defendants respectfully request that the Court
grant them the ability to present the below sur-reply at oral argument on October 16, 2013.
In effect, plaintiff seeks in effect to completely modify the Attorneys’ Eyes Only
(“AEO”) confidentiality stipulations entered into by this Court. As was previously briefed by
City Defendants in October 2012, plaintiff has not met the standard to modify a confidentiality
stipulation relied on by a producing party.3
a. Plaintiff Has Not Alleged Improvidence in the Grant of the Protective Order
or Some Other Extraordinary Circumstance or Compelling Need
According to the Second Circuit, “a district court should not modify a protective order. . .
‘absent a showing of improvidence in the grant of [the] order or some extraordinary
circumstance or compelling need.’” Securities and Exchange Commission v. TheStreet.com,
273 F.3d 222, 229 (2d Cir. 200l); see also Martindell v. International Telephone and Telegraph
Corporation, 594 F.2d 291, 296-97 (2d Cir. 1979). Moreover, there is “a general and strong
presumption against access to documents sealed under protective order when there was
reasonable reliance upon such an order.” SEC, supra at 231.
Prior to its execution and endorsement, all counsel had an opportunity to review and
object to the terms of the Attorneys’ Eyes Only (“AEO”) Stipulation. In fact, there were several
drafts exchanged amongst the parties and it took nearly six months to agree on the final
language. In the end, all counsel, including plaintiff’s, consented to the language of the
3

City Defendants further note that plaintiff’s October 15th memorandum claims that the Court on
September 25th ruled that “Plaintiff, Officer Schoolcraft, is entitled to review all documents and
recordings pertaining to all interviews of witnesses and defendants by NYPD investigators. See Pl.
10/15/13 Memo. at 11 (Dkt. 181). A review of the transcript of that oral argument clearly indicates that
the Court never made any such order and no order was thereafter issued by this Court.

Honorable Robert W. Sweet
Schoolcraft v. The City of New York, et al.
October 16, 2013
Page 5
Stipulation. Thereafter, the Court reviewed it and “so ordered” it without modification on
October 5, 2012. In light of the negotiations between the parties concerning the Stipulation, and
the Court’s subsequent review and endorsement of the proposed Order, plaintiff has failed to
show any improvidence in the granting of the Protective Order.
Further, plaintiff has failed to demonstrate a compelling need for access to any materials
produced pursuant to the protective order at issue. In Savage & Assocs. P.C. v. K&L Gates LLP
(In re Teligent, Inc.), 640 F.3d 53, 59 (2d Cir. 2011), the Court implied that a party seeking to
modify a protective order based on “compelling need” is required to make such a showing for
each particular document it seeks to have disclosed. Plaintiff has not mentioned a single
particular document that he believes was incorrectly designated as AEO, nor has he made an
attempt to explain why he has a compelling need for any specific document. In light of the fact
that plaintiff is represented by five separate attorneys at this time, who should be more than able
to represent his interests, plaintiff’s contention that he needs unfettered access to all of the
documents produced by City Defendants aside from “the designated disciplinary records of the
individual defendants (subject to a later motion by the plaintiff showing that the disciplinary
records are relevant to the issues in this case), and the criminal and financial background checks
conducted by the NYPD of Officer Schoolcraft’s father and sister” is unavailing.
Plaintiff’s application should be denied because City Defendants reasonably relied upon
the protections afforded by the AEO Confidentiality Stipulation and Order in producing the
subject documents. This Court has held that reliance may be presumed where information is
disclosed pursuant to protective order. Ionosphere Club. Inc. v. Ameriacn National Bank and
Trust Company of Chicago, 156 B.R. 414, 434 (S.D.N.Y. 1993) (Sweet, J.), aff’d, 17 F.2d 600
(2d Cir. 1994) (“Absent a showing of improvidence in the grant of a … protective order or some
extraordinary circumstance or compelling need… a witness should be entitled to rely upon the
enforceability of a protective order”); see also SEC, 273 F.3d at 229-30 (“if previously entered
protective orders have no presumptive entitlement to remain in force, parties would resort less
often to the judicial system for fear that such orders would be readily set aside in the future”);
AT&T Corporation v. Sprint Corporation, 407 F.3d 560, 562 (2d Cir. 2005) (“It is
‘presumptively unfair for courts to modify protective orders which assure confidentiality and
upon which the parties have reasonably relied”). The AEO documents at issue were all only
produced after the Court so-ordered the AEO Stipulation and Protective Order. In fact, City
Defendants indicated on April 26, 2013 that they would no longer produce Confidential and
AEO Confidential documents to plaintiff unless and until plaintiff’s current counsel confirmed in
writing that he understood that he was bound by the Confidentiality Orders signed by plaintiff’s
former counsel. See 04/26/13 Letter at 3, annexed hereto as Exhibit B. Thus, it is clear that City
Defendants relied upon the Protective Order in producing all AEO documents in this matter.
Finally, City Defendants note that good cause precipitated the need for the AEO
Stipulation in this matter and such good cause continues today. As the Court may recall, a
confidential document produced in discovery in this matter appeared only two months later in an
article published by the reporter with whom plaintiff has collaborated from 2010 through 2013,
through the admitted production of documents, recordings, and even interviews for a recently
published book. An AEO Stipulation gives City Defendants at least some assurance that a similar
leak will not happen again.

Honorable Robert W. Sweet
ofN
v
October 16,2013
Page 6

Plaintiff cannot demonstrate that the Attorneys' Eyes Only Stipulation

was

improvidently granted, that City Defendants did not rely on that so-ordered Stipulation when
producing documents, nor that plaintiff has a compelling need for access to any specific
documents. Additionally, good cause existed for the Attorney's Eyes Only designations at the
time they were made, and continues to exist for the confidentiality designations now. Therefore,
plaintiff s request to modify the AEO Stipulation should be denied.

4.

Conclusion

As plaintiff has abandoned any claims to the rifle and rifle accessories, and the NYPD
has agreed to return plaintiff s Olympus DS-50 recording device, City Defendants respectfully
state that no further issues remain for this Court to adjudicate regarding the return of plaintiff s
property, Because City Defendants have complied with one of the Court's requirements to lift
the June 28th injunction, said injunction should now be lifted by this Court. Finally, because the
Stipulation and Protective Order was not entered by the Court improvidently, there are no
extraordinary circumstances warranting its modification, and the City Defendants relied on that
Order when producing confidential documents, City Defendants respectfully request that the
Court deny plaintiff s request to modify the so-ordered Attorneys' Eyes Only Stipulation,
Respectfully submitted,

Suzanna P. Mettham
Assistant Corporation Counsel
cc

Nathaniel Smith (By ECF)
Attorney for Plaintiff
Gregory John Radomisli (By ECF)
MRRrn Cle¡.RwRrER & BELL 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 for Lillian Aldqna-B ernier

Walter A.Kretz, Jr. (By ECF)
SCOPPETTA SEIFF KRETZ & ABERCROMBIE
Attorney þr Defendant Mauriello