Schoolcraft v. The City Of New York et al

Filing 225

DECLARATION of Suzanna Publicker Mettham in Support re: 223 MOTION to Compel Graham Rayman to Produce Documents.. 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), 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). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Mettham, Suzanna)

EXHIBIT H

THr Crrv oF NEW Yonr
MTCHABL A, CARDOZO

L¡.w

Corporation Counsel

DNPNRTMENT

IOO CHURCH STREET
NEV/ YORK, NY IOOOT

Suzanna Publickcr
A ssis lant Corporal¡on C ounse I
phone: (2ì2) 788-l 103

fax. [phone]
spublick@law,nyc gov

March 1,2073

BY HAND DELIVERY
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.

l0-cv-600s (RV/s)
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 above-referenced
matter.' City Defendants write regarding certain of plaintiffs discovery deficiencies,
background, City Defendants served plaintiff with their First Set of
Interrogatories and Document Requests on or about December 5, 2071, to which plaintiff
beletedly responded on April 9, 2012. City Defendants served a second set of Document
Requests on or about August 20,2072, to which plaintiff again belatedly responded on October
21,2012,2 City Defenclants outlined the deficiencies to plaintiffls responses to these requests ìn
a letter dated December 19,2012 (annexed hereto as Exhibit A), and have further followecl up
with plairrtiff s counsel by letter dated February 15,2013 (annexed hereto as Exhibit B). Plaintiff
has not responded in any manner, City Defendants therefore respectfully request that the Court
compel plaintiff to respond to the enumerated requests below by a date certain as City
Defendants are not able to move forward with the second day of plaintiff s deposition until these

By way of

documents are received,

I

Aucording to a revieu, of the Civil Docket Sheet, Lieutenant William Gough, Sergeant Robert W. O'Harç,
Sergcant Sondra Wilson, Lieutenant 'I'homas Hanley, and Captain Timothy Trainor have not yet been served rvith
process, and are therefore not pafties to this action.
2
Pursuant to F,R.C,P. 33 and 34, because plaintiff failed to either respond, or seek an enlargement of time in which
to respond within 30 days of service of City Defendants' discovery requests, any objections to those requests have
been lvaived.

A" Financial Expenses Incurred Rv Plaintiff
City Defendants demanded proof of all financial expenses incurrecl by plaintiff as a result
of the allegedly unlawful conduct of defendants in this matter.3 PlaintifÏ responded by stating
that the demand "is vague, ambiguous, overbroad and unduly burdensome, to the extent that it
seeks documents that are neither relevant nor reasonably calculated to lead to the discovery of
adrnissible evidence, and to the extent that it calls for the production of material not within
plaintiff s possession, custody or control, and that is more readily obtained from another source."
Plaintiff is alleging economic damages in this matter, and as such, plaintiff s contention that the
doiûment request is "neither relevant nor reasonably calculatecl to lead to the discovery' of
admissible e./idence"'is utterly incomprehensible. Even to the extent that plaintiff alleges that
eviclence of plaintiffs financial damages is more readily available from another source, plaintiff
has fàiled to identify the source(s) from whom City Defendants may request Such evidence,
de:ipite requests from City Defendants to so identify the source(s), Plaintiff has similarly refused
attempting to secure other
to provide evidence of his efforts to mi
he was issuecl as a result of his
pror:f of the $7,185.00 medical
employment,a
used by plaintiff.6 Given the
co,ifinr-.nt,s'and proof of purchase of the
relcvance of plaintifls economic losses and any attempts to mitigate those losses to this
litigation, City Lrefendants respectfully request that the Couft order plaintiff to produce
responsive information by a date certain.
BJ

Pallestro Apd Adh.vl Polanco
Plaintiff alleged in his Second Amencled Complaint that non-party Police Officers Adhyl
Polanco and Frank Pallestro have evidence that the IAB failed to keep their complaintS of
con:uption and illegality confidential, which plaintiff believe supports his claims in this action.
City Defendants therefore demanded any documents in plaintifls possession that support these
allegations.T Plaintiff responded in part that "[the requestl demands disclo'sure of information
aricJior communications that are protected by the attorney-client or work-product privileges, or
which constitute material prepared for litigation purposes," Iit response, City Defendants
requested a privilege log for those documents plaintiff believes are protected by the attorneyclient ancllor r"'ork-product privileges, which plaintiff has thus far failed to provide.

Plaintiff further objected to produce responsive dccuments corrcerning Frank Pallestro
that.are in plairltiffls possession, without first obtaining an Attorneys Eyes Only Stipulation

.r,

exer:utecl.by the parties and ordered by the Court. City Defendants do not believe any Attorneys'

Eyes Only Stipulation is required when none was required fbr plaintiff to produce similar
information pertaining to Adhyl Polanco, Further, plaintiff s claim that evidence regarding Frank
Pallestro cannot be produced absent such a stipulation because Pallestro fears retaliation, is
meritless in light of the fact that plaintiff has alread), identified Frank Pallestro as having
3

See.

I't

Set

of Document Rpquests - Document

Request Number 9.

a

See l'1 Set of Document Requests - Document Request Number l3
t g"g 2no Set of Document Requests - Document Request Number 6.

t
7

Sgé 2no Set of Document Requests - Document Request Number 4.
See 2nd Set

ol Document Requests - Documenl Request Number l,

t.,

2

2

provided information to IAB regarding "allegations of illegality," and more importantly, Frank
Þailestro himself has given numerous interviews to media souTces inclucling the New York Daily
Nervs on these matters,s Accordingly, City Defendants respectfully request that the Court order
plaintiff to provide all evidence in his possession regarding Poliçe Officers Adhyl Polanso ancl
Fr4nk Pallestró.

,C¡
Through the course of discovery, City Defendants learned that plaintiff and his counsel
which asked mernbers of the
opeiated a website with the URL of
ity Defendants demanded'that
pla
ÑVpO tô provicle information for
plaintiff produce messages and communications received through www.schQolcraftjustice,com,
including the names, contact information, and IP addresses of all respondents,'

Plaintiff claimed that the request inrplicated that "disclosure of information andlor
conrmunications that are protected by the attorney-cliènt or work-product privileges, or which
constitute material prepared for litigation purposes." So, though plaintiff provided soØe response
to this request, in doing so, plaintiff redacted the names, contact, informatiou, and IP addresses
of all respondents. After City Defendants challenged the assertion of privilege, by pointing out
that the website itself included a disclaimer stating that "information on this rvebsite is not
intended to creatç, and receipt or viewing of this information does not constitute, an attorneyclient relationship," the websitç was taken down.'' It is clear from counsels' website disclaimer
th¿r.t. there is no attorney-client relationship with regard to any responses to fhe
wuìv.schoolcraftiustice.com website and that any claim of privilege would not be asserted in
gcod faith, liven if there were a relationship, plaintiff has refused to provide a privilege log
reflecting the information plaintiff contends is protected by the attorney-client and/or workprcduct privileges, which is required under the Local Rules to be furnished at the time the
objection is asSerted, See Local Rule 26.2(b). Furthèr, as the nameò, contact information, ancl IP
adclresses of all respondents is information that was not prepared for litigation purposes, it cannot
be c.onsidered attorney wolk-product, Additionally, to the extent that plaintiff intends to rely on
statements posted to the website in the furtherance of their litigation, defendants are entitled to
learn the identities of the individuals providing informaticn, and gather their contact information
to investigate their claims and/or facilitate the service of subpoenas. Accordingly, City
Defendants request that the Courl demancl plaintiff to produce the subject messages and
communications received through wwr.v.schoolcraftjlrstice.com, inclu ding the un-redacted
nuî.r, contact information, ancl IP addresses of all respondents.

t see, e.g,,

-A?-nd-

h!lp-

orecinct-union-deler¿ate-articl e- I . I 9rl8 8 I
n

of Document Requests - Document Request Number 2.
"The infbrmation contained on this website is for general information purposes only.'Nothing on this or associated
pagès, documents, comments, answers, emails, or other communications should be taken as legal aclvice for any
indjvidual case or situation, This information on this website is not intcnded to create, and receipt or viewing of this
information does not constitute, an attorney-client lelationship. This is attorney advertising. Past performance does
not guarantee future results," (Screenshot of wrvrv.scþseþIatj-u!û-q9.com, Exhibit C)(emphasis added).
S-g9 2nd Set

r0

3

D.

Communications bv Plaintiff with Media Outlets

City Defendants demanded that plaintiff "fp]roduce any documents,

messages, and
commrmications including but not limited to emails, text messages, and letters reflecting any
cornmunications, interviews, conversations, or meetings plaintiff has had with any media outlet
regarding the allegations of the instant lawsuit, including but not limited to blogs, newspapers,
raãio stations, independent reporters, and ma ;azines." See 2nd Set of Document Requests Document Request Number 7, Plaintiff objected to that request by stating that it was "vague,
ambiguous, overbroad and unduly burdensome, to the extent that it seeks documents that are
more readily obtained from another source." City Defendants find this response wholly
inappropriate given the number of statements plaintiff has made to the media pertaining to the
allegations set forth in the complaint. City Defendants are entitlecl to discover statements that
plaintiff has made concerning his allegations herein irrespective of,whether they are also
availablç from another source. Thus, plaintiff s objections to the document request are baseless
ancl accordingly, City Defendants respectfully request that the Court compel plaintiff to prbvide
documents responsive to these wholly reasonable demancls.

II. Plaintiffls Failure

nond to Citv Defendants'

On December 19, 2012, City Defendants served plaintiff with Requests for Admission
regarding the identification of plaintiff s voice on certain recordings. Responses to these reqttests
are, needed beoause plaintiff could not recall whether he had made certain statements on the
lecordings when asked about them at his deposition on October 11,2012. On that same date,
City Defendants also'followed up on requests for production of'docuihents first made during
ite having had this
plaintifls deposition. Plaintiff has not responded to arly o
2013, In view of
glriring deficiency pointed out in a letter by City Defend
ntiff to respond to
request that t
the foregoing, City Defendants respectfully
City Det'endants' Requests for Admissions and document discovery clemands made by City
Defendants first at plaintiff s deposition, and later by letter dated December 19,2012 by a date
certain.

For the reasons stated above, Cit¡, Defendants respectfully request that the Court order
plaintiff to provide the doouments and infcrrrnation listed above by a date certain.
City Defèndants thanks the Courl f'or its time and corrsideration of this request,

subrnitted,

cker

' Assistant Cor'poration

Counsel
Special Federal Litigation Divisiorr

cc:

Richarcl Gilbert (B), Fax [phone])
t t o r ney for P I aint if/'
I 15 Christopher Street, 2nd Floor
New York, New York 10014

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Gregory John Radomisli (By Fax[phone])
MRRrm Cle¡,nwRr¡n & B¡t t- LLP
Attorneys for Jamaica Hospital Medical Center
220 East 42nd Street l3th Floor
New York, NY 10017

Brian Lee (By Fax [phone])
IVONE, DEVINE & JENSEN, LLP
Attorneys for Dr, Isøk Isakov
2001 Ivfarcus Avenue, Suite Nl00
Lake Success, New York 11042
Bruce M. Brady (By Fax [phone])
CALLAN, KOSTER, BRADY & BRENNAN, LLP
Attorneys for Li ll ian Aldqna- Bernier
1 'Whitehall Street
New York, New York 10004

V/alter Aoysius Krelz , Jr. (By Fax [phone])
SEIFF KRETZ & ABERCROMBIE
Attorney for Defendant Mauriello
444Madison Avenue, 30th Floor
New York, NY 10022

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