Schoolcraft v. The City Of New York et al

Filing 219

FILING ERROR - ELECTRONIC FILING OF NON-ECF DOCUMENT - LETTER MOTION for Local Rule 37.2 Conference Reply to January 30, 2014 Letter Motion addressed to Judge Robert W. Sweet from Suzanna Publicker Mettham dated February 14, 2014. 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 2/11/2014 at 12:00 PM. (Attachments: # 1 Exhibit A - Transcript of January 15, 2014 Conference)(Mettham, Suzanna) Modified on 2/18/2014 (db).

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EXHIBIT A 1 E1FBSCHC 1 Conference 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x 3 ADRIAN SCHOOLCRAFT, 4 Plaintiff, 5 6 v. THE CITY OF NEW YORK, et als, 7 8 10 CV 6005 (RWS) Defendants. ------------------------------x New York, N.Y. January 15, 2014 12:06 p.m. 9 10 Before: 11 HON. ROBERT W. SWEET, 12 District Judge 13 APPEARANCES 14 15 16 NATHANIAL B. SMITH Attorney for Plaintiff JOHN LENOIR Attorney for Plaintiff 17 18 19 20 21 22 23 24 25 MICHAEL A. CARDOZO, Corporation Counsel for the City of New York Attorneys for Defendant SUZANNA PUBLICKER METTHAM SCOPPETTA SEIFF KRETZ & ABERCROMBIE Attorneys for Defendant Mauriello WALTER A. KRETZ, JR. MARTIN CLEARWATER & BELL LLP Attorneys for Defendant Jamaica Hospital GREGORY JOHN RADOMISLI IVONE, DEVINE and JENSEN, LLP Attorneys for Defendant Isakov BRIAN E. LEE SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 E1FBSCHC Conference 1 (In open court) 2 THE COURT: 3 MS. METTHAM: Schoolcraft. Good afternoon, your Honor. We're here 4 on a motion by City defendants from December 18th. 5 like some of the matters are more or less resolved. 6 think we could start with the easiest and go to the more 7 difficult. 8 THE COURT: 9 MS. METTHAM: It sounds So I Okay. The easiest is plaintiff provided some 10 memoranda to nonparty NYPD witnesses, or so he claims. 11 searched NYPD for these memoranda; have not been able to find 12 them. 13 requested them of plaintiff, but haven't received them. 14 plaintiff's opposition, he stated he has no objection to 15 providing them. 16 17 We In our original document requests three years ago, we In So we simply ask that he be ordered to provide those documents by next week. 18 THE COURT: Any problem? 19 MR. SMITH: I just don't want anyone to suggest -- 20 this is Nathanial Smith for Schoolcraft. 21 identify myself for the record. 22 I just want to I don't know that the plaintiff has these documents. 23 These are two memos that -- 24 THE COURT: Well, if he has them, he'll produce them. 25 MR. SMITH: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 E1FBSCHC Conference 1 THE COURT: Okay. 2 MS. METTHAM: Your Honor, the second one is a letter 3 that plaintiff wrote firing previous counsel on this case. 4 the City defendants have -- 5 THE COURT: 6 me. I think I understand that. As Well, you told Has that been resolved? 7 MS. METTHAM: 8 THE COURT: 9 It has not. there was a waiver? And this is the issue as to whether or not 10 MS. METTHAM: 11 THE COURT: Yes, your Honor. Well, at this stage, we don't know that 12 there's a waiver. Right? 13 that either the reporter was lying -- you should pardon the 14 expression -- or something, but we don't know. 15 MS. METTHAM: 16 THE COURT: We know that-- you take the position Correct. How are we going to resolve that? I mean, 17 maybe the only thing you can do is subpoena the reporter and 18 then we can have a litigation over sources. 19 old time. 20 MS. METTHAM: 21 done just that. 22 We'll have a grand I hate to inform your Honor that we have So we will be having a grand old time, just not today. 23 THE COURT: 24 MS. METTHAM: 25 Okay. My proposal, though, in my reply was that if plaintiff could provide an affidavit either stating SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 E1FBSCHC 1 Conference that he never provided these documents -- 2 THE COURT: 3 MS. METTHAM: 4 THE COURT: 5 is he? Oh, sure, that would have solved it. Yes. But obviously he's not going to do that or Maybe? 6 MR. SMITH: Well, I mean, he's been asked -- 7 THE COURT: That would obviate the problem. I guess 8 the answer is unless you depose him or something, I don't know 9 how you can compel him to give you an affidavit. 10 MR. SMITH: Well, part of the problem is that they've 11 taken his deposition for 21 consecutive hours. 12 this issue seven hours into the 21 hours. 13 decided, well, we'd really like to get our hands on this juicy 14 piece of totally irrelevant information about why the plaintiff 15 fired his prior lawyer. 16 17 They knew about And now they've You know, I mean, yeah, could he provide an affidavit? Should he? No. 18 THE COURT: Okay. 19 MS. METTHAM: All right. Your Honor, I would actually cite to the 20 case cited by Mr. Smith in his opposition, the Wellnx Life 21 Sciences case which, in a similar matter, had an evidentiary 22 hearing before the Court to resolve it. 23 going through the process of another deposition or another 24 evidentiary hearing, that the Court order plaintiff to either 25 produce the document or provide an affidavit that he did not I simply ask that in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 E1FBSCHC 1 Conference produce those documents to Graham Raymond (ph) or his father. 2 THE COURT: What's my authority to do that? 3 will order him to be deposed again if you want. 4 I mean, I that. 5 MS. METTHAM: We can do I mean, I would ask, then, that your 6 Honor order his deposition. 7 avoid the deposition by providing an affidavit, we would be 8 willing to do so. 9 THE COURT: Sure. And if plaintiff would like to Okay. Fine. 10 MS. METTHAM: 11 The third matter is with regard to messages that 12 Thank you, your Honor. plaintiff's counsel received through a website set up-- 13 THE COURT: Yes. 14 MS. METTHAM: So what happened is a few years ago 15 plaintiff's prior counsel produced hundreds of pages of these 16 documents without any confidentiality designation whatsoever, 17 but with the names and contact information redacted. 18 been for the last two years in a protracted attempt to avoid 19 coming to the Court about this matter. 20 We have I have proposed to both prior and current counsel that 21 either plaintiff provide the names and contact information of 22 these individuals so that we can probe the veracity and 23 credibility of these statements or that plaintiff be precluded 24 from relying on these documents and statements in discovery and 25 at trial. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 E1FBSCHC Conference 1 THE COURT: What do you think? How do we solve this? 2 MR. SMITH: My solution, your Honor, was that the 3 names be provided to just the lawyers and the reason for 4 that -- 5 THE COURT: No, I understand. That's fine, but that 6 doesn't quite solve the problem. It seems to me one of two 7 things: 8 attorneys' eyes only, all of the information, or if you want to 9 give them the name and keep the redaction as to the You can provide all of the information eyes only, 10 identification, I would permit that. But you will not be-- if 11 you're going to use any of that information in any way -- and 12 the trouble with that is how do we determine whether you do 13 that or not? 14 going to be called, they've got to be deposed, et cetera, et 15 cetera. I mean, obviously if any of these people are I mean, if the City wants to. 16 So what would you like? 17 MR. SMITH: 18 Well, my preference would be to provide all of the information on an attorneys' eyes only basis and -- 19 THE COURT: That's fine. 20 MR. SMITH: And -- 21 THE COURT: That's fine, but you also have to at some 22 23 time indicate if you're going to call any of these people. MR. SMITH: Yes. And that's where I think this rather 24 substantial concern of safety has got to be addressed in a 25 thoughtful and careful way. And right now I can think of one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 E1FBSCHC Conference 1 person who sent an e-mail who may actually have to testify as a 2 witness in this case, because he actually also was tape 3 recording one of the other -- 4 THE COURT: Okay. I saw that. 5 MR. SMITH: Yes. So, I mean -- 6 THE COURT: Clearly any evidence that you want to 7 adduce based on those eyes only production, you have to now-- 8 when are you going to be able to-- where are we? 9 end in sight? 10 Is there an Probably not, but is there an end in sight for discovery? 11 MR. SMITH: Yes. Your Honor has given us until the 12 middle of March approximately. 13 plaintiff for three days. 14 taken. 15 16 THE COURT: We've done, as I indicated, the The father of the plaintiff has been Well, look, at some time-- did you say the end of March? 17 MR. SMITH: The middle of March. 18 THE COURT: So obviously you've got to tell the City 19 quite soon if you're going to call any of these, use any of 20 these people. 21 MR. SMITH: Yes, I recognize that. 22 THE COURT: What would you say? 23 MR. SMITH: Well, with respect to this one, we're Within a week? 24 moving pretty-- we're working hard now on discovery. 25 are, Judge. I've taken, like, seven depositions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 We really 8 E1FBSCHC 1 2 3 4 Conference THE COURT: That was not a smile. involuntary acid attack. MR. SMITH: Well, I apologize if I had any role in that attack. 5 THE COURT: 6 MS. METTHAM: 7 8 That was an Oh, you certainly had. Your Honor, if I might just bring up one issue, which is that -THE COURT: But let's be sure we're finished on this. 9 So within a week you'll advise -- one, you'll give the City all 10 of the information, eyes only for attorneys; and within a week 11 if you're going to use any of these people, you will notify the 12 City within a week or, say, ten days so that they will have an 13 opportunity, if they choose to, to depose them. 14 MR. SMITH: Very well. 15 MS. METTHAM: Your Honor, my only concern with the 16 attorneys' eyes only is that, if you'll recall, when City 17 defendants had marked similar documents attorneys' eyes only, 18 plaintiff argued to the Court that because those complaints 19 included allegations against him, he should be able to see the 20 documents to defend himself. 21 attorneys' eyes only confidentiality and made them 22 confidential. 23 24 25 And so your Honor removed the And my concern is that these documents similarly contain allegations against the City and Detective Mauriello. THE COURT: Well, I think what's going to happen is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 E1FBSCHC Conference 1 when he designates these people, the basis for the eyes only 2 is, on the one hand, work product, arguable; on the other is 3 the blue wall problem. 4 these folks, the blue wall problem is out of it. 5 doesn't exist anymore. 6 7 8 9 10 MS. METTHAM: If he's going to elect to use any of I mean, that So I would suggest, your Honor, if it would be possible, that documents -THE COURT: Excuse me. So it seems to me the logical conclusion is the attorneys' eyes only is lifted as to those that he's going to use. 11 MS. METTHAM: Yes, your Honor. 12 THE COURT: Okay. 13 MR. SMITH: Well, if you don't mind, your Honor, I'd 14 like to just get a little bit of delay into when ultimately it 15 has to be lifted. 16 17 18 But it doesn't have to be lifted in a week. THE COURT: No, except they're going to have to-- they're going to have to get these people in. MR. SMITH: The lawyers have to get this person in. 19 We don't have to have, you know, public knowledge of who these 20 people are. 21 22 23 THE COURT: That's fine. Okay, at that point. But at some point that's gone. MR. SMITH: Yes. Certainly when the person is listed 24 in a pretrial order, stands up and takes an oath and starts 25 testifying, for sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 E1FBSCHC Conference 1 THE COURT: Oh, yes, but before then. 2 MR. SMITH: Well before then. 3 THE COURT: Yes. 4 MR. SMITH: But we're not there yet. 5 THE COURT: Well, let's just say as to anybody that is 6 going to be used, a month before the designation is over. 7 MS. METTHAM: 8 THE COURT: 9 10 I understand that. Could you just clarify that? I mean a month before-- I'm saying mid-February. MS. METTHAM: So to be clear, your Honor, you've 11 stated that plaintiff shall provide the names and contact 12 information to City defendants within -- was it a week? 13 THE COURT: Right. 14 MS. METTHAM: And then anyone that plaintiff wishes to 15 use as a witness in this case, he must identify them as a 16 witness within that same week. 17 February 14th-- 18 THE COURT: 19 MS. METTHAM: 20 21 22 And then a month from now, say As to those that are designated. -- as to those that are designated, the attorneys' eyes only designation. THE COURT: Right. Okay. Yes. Anything else? Good-bye. 23 MS. METTHAM: Thank you, your Honor. 24 MR. KRETZ: 25 I would just like the Court to be aware there are 13 Walter Kretz for Defendant Mauriello. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 E1FBSCHC Conference 1 named defendants that have yet to be deposed. There are 2 anywhere, it seems to me, from half a dozen to a dozen 3 nonparties who have yet to be deposed. 4 THE COURT: So you're saying mid-march, May. 5 MR. KRETZ: I just want the Court to be aware of that. 6 THE COURT: There's another little problem that's 7 8 9 hanging out there, which is the PBA and this same -MS. METTHAM: this for Stinson. Your Honor, I think you're mistaking The Stinson oral argument is scheduled for 10 next week and the matter with the PBA is with regard to the 11 Stinson case. 12 THE COURT: 13 MS. METTHAM: 14 THE COURT: 15 16 Okay. One thing off your plate for now. Well, it's our weekly get-together. you, all. (Adjourned) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Thank

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