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).

EXHIBIT A

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRIAN SCHOOLCRAFT,

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Plaintiff,

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v.
THE CITY OF NEW YORK, et als,

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10 CV 6005 (RWS)

Defendants.
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New York, N.Y.
January 15, 2014
12:06 p.m.

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Before:
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HON. ROBERT W. SWEET,
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District Judge
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APPEARANCES
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NATHANIAL B. SMITH
Attorney for Plaintiff
JOHN LENOIR
Attorney for Plaintiff

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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.

[phone]

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(In open court)

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THE COURT:

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MS. METTHAM:

Schoolcraft.
Good afternoon, your Honor.

We're here

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on a motion by City defendants from December 18th.

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like some of the matters are more or less resolved.

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think we could start with the easiest and go to the more

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difficult.

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THE COURT:

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MS. METTHAM:

It sounds
So I

Okay.
The easiest is plaintiff provided some

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memoranda to nonparty NYPD witnesses, or so he claims.

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searched NYPD for these memoranda; have not been able to find

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them.

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requested them of plaintiff, but haven't received them.

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plaintiff's opposition, he stated he has no objection to

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providing them.

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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.

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THE COURT:

Any problem?

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MR. SMITH:

I just don't want anyone to suggest --

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this is Nathanial Smith for Schoolcraft.

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identify myself for the record.

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I just want to

I don't know that the plaintiff has these documents.

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These are two memos that --

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THE COURT:

Well, if he has them, he'll produce them.

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MR. SMITH:

Yes.

SOUTHERN DISTRICT REPORTERS, P.C.

[phone]

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THE COURT:

Okay.

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MS. METTHAM:

Your Honor, the second one is a letter

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that plaintiff wrote firing previous counsel on this case.

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the City defendants have --

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THE COURT:

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me.

I think I understand that.

As

Well, you told

Has that been resolved?

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MS. METTHAM:

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THE COURT:

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It has not.

there was a waiver?

And this is the issue as to whether or not

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MS. METTHAM:

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THE COURT:

Yes, your Honor.

Well, at this stage, we don't know that

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there's a waiver.

Right?

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that either the reporter was lying -- you should pardon the

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expression -- or something, but we don't know.

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MS. METTHAM:

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THE COURT:

We know that-- you take the position

Correct.

How are we going to resolve that?

I mean,

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maybe the only thing you can do is subpoena the reporter and

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then we can have a litigation over sources.

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old time.

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MS. METTHAM:

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done just that.

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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.

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THE COURT:

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MS. METTHAM:

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Okay.
My proposal, though, in my reply was

that if plaintiff could provide an affidavit either stating
SOUTHERN DISTRICT REPORTERS, P.C.

[phone]

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that he never provided these documents --

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THE COURT:

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MS. METTHAM:

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THE COURT:

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is he?

Oh, sure, that would have solved it.
Yes.

But obviously he's not going to do that or

Maybe?

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MR. SMITH:

Well, I mean, he's been asked --

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THE COURT:

That would obviate the problem.

I guess

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the answer is unless you depose him or something, I don't know

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how you can compel him to give you an affidavit.

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MR. SMITH:

Well, part of the problem is that they've

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taken his deposition for 21 consecutive hours.

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this issue seven hours into the 21 hours.

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decided, well, we'd really like to get our hands on this juicy

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piece of totally irrelevant information about why the plaintiff

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fired his prior lawyer.

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They knew about

And now they've

You know, I mean, yeah, could he provide an affidavit?
Should he?

No.

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THE COURT:

Okay.

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MS. METTHAM:

All right.

Your Honor, I would actually cite to the

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case cited by Mr. Smith in his opposition, the Wellnx Life

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Sciences case which, in a similar matter, had an evidentiary

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hearing before the Court to resolve it.

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going through the process of another deposition or another

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evidentiary hearing, that the Court order plaintiff to either

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produce the document or provide an affidavit that he did not

I simply ask that in

SOUTHERN DISTRICT REPORTERS, P.C.

[phone]

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produce those documents to Graham Raymond (ph) or his father.

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THE COURT:

What's my authority to do that?

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will order him to be deposed again if you want.

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I mean, I

that.

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MS. METTHAM:

We can do

I mean, I would ask, then, that your

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Honor order his deposition.

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avoid the deposition by providing an affidavit, we would be

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willing to do so.

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THE COURT:

Sure.

And if plaintiff would like to

Okay.

Fine.

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MS. METTHAM:

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The third matter is with regard to messages that

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Thank you, your Honor.

plaintiff's counsel received through a website set up--

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THE COURT:

Yes.

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MS. METTHAM:

So what happened is a few years ago

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plaintiff's prior counsel produced hundreds of pages of these

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documents without any confidentiality designation whatsoever,

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but with the names and contact information redacted.

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been for the last two years in a protracted attempt to avoid

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coming to the Court about this matter.

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We have

I have proposed to both prior and current counsel that

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either plaintiff provide the names and contact information of

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these individuals so that we can probe the veracity and

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credibility of these statements or that plaintiff be precluded

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from relying on these documents and statements in discovery and

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at trial.

SOUTHERN DISTRICT REPORTERS, P.C.

[phone]

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THE COURT:

What do you think?

How do we solve this?

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MR. SMITH:

My solution, your Honor, was that the

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names be provided to just the lawyers and the reason for

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that --

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THE COURT:

No, I understand.

That's fine, but that

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doesn't quite solve the problem.

It seems to me one of two

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things:

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attorneys' eyes only, all of the information, or if you want to

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give them the name and keep the redaction as to the

You can provide all of the information eyes only,

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identification, I would permit that.

But you will not be-- if

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you're going to use any of that information in any way -- and

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the trouble with that is how do we determine whether you do

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that or not?

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going to be called, they've got to be deposed, et cetera, et

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cetera.

I mean, obviously if any of these people are

I mean, if the City wants to.

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So what would you like?

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MR. SMITH:

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Well, my preference would be to provide

all of the information on an attorneys' eyes only basis and --

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THE COURT:

That's fine.

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MR. SMITH:

And --

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THE COURT:

That's fine, but you also have to at some

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time indicate if you're going to call any of these people.
MR. SMITH:

Yes.

And that's where I think this rather

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substantial concern of safety has got to be addressed in a

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thoughtful and careful way.

And right now I can think of one

SOUTHERN DISTRICT REPORTERS, P.C.

[phone]

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person who sent an e-mail who may actually have to testify as a

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witness in this case, because he actually also was tape

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recording one of the other --

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THE COURT:

Okay.

I saw that.

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MR. SMITH:

Yes.

So, I mean --

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THE COURT:

Clearly any evidence that you want to

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adduce based on those eyes only production, you have to now--

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when are you going to be able to-- where are we?

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end in sight?

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Is there an

Probably not, but is there an end in sight for

discovery?

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MR. SMITH:

Yes.

Your Honor has given us until the

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middle of March approximately.

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plaintiff for three days.

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taken.

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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?

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MR. SMITH:

The middle of March.

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THE COURT:

So obviously you've got to tell the City

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quite soon if you're going to call any of these, use any of

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these people.

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MR. SMITH:

Yes, I recognize that.

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THE COURT:

What would you say?

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MR. SMITH:

Well, with respect to this one, we're

Within a week?

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moving pretty-- we're working hard now on discovery.

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are, Judge.

I've taken, like, seven depositions.

SOUTHERN DISTRICT REPORTERS, P.C.

[phone]

We really

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THE COURT:

That was not a smile.

involuntary acid attack.
MR. SMITH:

Well, I apologize if I had any role in

that attack.

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THE COURT:

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MS. METTHAM:

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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.

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So within a week you'll advise -- one, you'll give the City all

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of the information, eyes only for attorneys; and within a week

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if you're going to use any of these people, you will notify the

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City within a week or, say, ten days so that they will have an

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opportunity, if they choose to, to depose them.

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MR. SMITH:

Very well.

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MS. METTHAM:

Your Honor, my only concern with the

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attorneys' eyes only is that, if you'll recall, when City

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defendants had marked similar documents attorneys' eyes only,

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plaintiff argued to the Court that because those complaints

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included allegations against him, he should be able to see the

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documents to defend himself.

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attorneys' eyes only confidentiality and made them

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confidential.

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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.

[phone]

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when he designates these people, the basis for the eyes only

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is, on the one hand, work product, arguable; on the other is

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the blue wall problem.

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these folks, the blue wall problem is out of it.

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doesn't exist anymore.

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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.

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MS. METTHAM:

Yes, your Honor.

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THE COURT:

Okay.

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MR. SMITH:

Well, if you don't mind, your Honor, I'd

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like to just get a little bit of delay into when ultimately it

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has to be lifted.

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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.

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We don't have to have, you know, public knowledge of who these

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people are.

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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

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in a pretrial order, stands up and takes an oath and starts

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testifying, for sure.

SOUTHERN DISTRICT REPORTERS, P.C.

[phone]

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THE COURT:

Oh, yes, but before then.

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MR. SMITH:

Well before then.

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THE COURT:

Yes.

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MR. SMITH:

But we're not there yet.

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THE COURT:

Well, let's just say as to anybody that is

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going to be used, a month before the designation is over.

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MS. METTHAM:

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THE COURT:

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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

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stated that plaintiff shall provide the names and contact

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information to City defendants within -- was it a week?

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THE COURT:

Right.

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MS. METTHAM:

And then anyone that plaintiff wishes to

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use as a witness in this case, he must identify them as a

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witness within that same week.

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February 14th--

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THE COURT:

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MS. METTHAM:

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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.

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MS. METTHAM:

Thank you, your Honor.

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MR. KRETZ:

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I would just like the Court to be aware there are 13

Walter Kretz for Defendant Mauriello.

SOUTHERN DISTRICT REPORTERS, P.C.

[phone]

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named defendants that have yet to be deposed.

There are

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anywhere, it seems to me, from half a dozen to a dozen

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nonparties who have yet to be deposed.

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THE COURT:

So you're saying mid-march, May.

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MR. KRETZ:

I just want the Court to be aware of that.

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THE COURT:

There's another little problem that's

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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

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next week and the matter with the PBA is with regard to the

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Stinson case.

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THE COURT:

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MS. METTHAM:

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THE COURT:

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Okay.
One thing off your plate for now.

Well, it's our weekly get-together.

you, all.
(Adjourned)

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SOUTHERN DISTRICT REPORTERS, P.C.

[phone]

Thank