Schoolcraft v. The City Of New York et al
Filing
238
REPLY MEMORANDUM OF LAW 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), 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)
Index No. 10 Civ. 6005 (RWS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ADRIAN SCHOOLCRAFT,
Plaintiff,
-againstTHE CITY OF NEW YORK, et al.,
Defendants
REPLY IN FURTHER SUPPORT OF MOTION TO
COMPEL DOCUMENTS FROM GRAHAM
RAYMAN AND OPPOSITION TO CROSSMOTION TO QUASH SUBPOENA
ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorney for City Defendants
100 Church Street
New York, N.Y. 10007
Of Counsel: Suzanna Publicker Mettham
Tel: (212) 356-2372
Matter No. 2010-033074
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... iii
PRELIMINARY STATEMENT .................................................................................................... 1
ARGUMENT
POINT I
THIS COURT SHOULD EMPLOY THE FEDERAL
JOURNALIST’S PRIVILEGE STANDARD. ............................................1
POINT II
THERE IS NO UNDUE HARM OR BURDEN TO
MR.
RAYMAN
TO
COLLECT
THE
SUBPOENAED DOCUMENTS. ................................................................2
POINT III
PLAINTIFF HAS WAIVED ANY CLAIMS OF
PRIVILEGE BY FAILING TO COMPLY WITH
FED. R. CIV. P. 45(E)(2)(A) AND ON HIS
OBJECTIONS THE BASIS OF VAGUENESS ARE
DISINGENUOUS........................................................................................3
POINT IV
DESCRIPTIONS
OF
RELEVANCE
OF
INDIVIDUAL
REQUESTS
AND
THEIR
UNAVAILABILITY BY OTHER MEANS. ..............................................4
A.
Subpoena Requests Nos. 5, 14, and 16 –
Written Statements of Schoolcraft ...................................................4
B.
Subpoena Requests Nos. 2, 3, and 18 - EMails to Graham Rayman ................................................................5
C.
Subpoena Requests Nos. 4, 7, 11, 12, 20,
and 21 – Recordings.........................................................................6
D.
Subpoena Requests No. 6 – Crime
Complaint Reports ...........................................................................7
Page
E.
Subpoena Requests Nos. 8 and 10 Memoranda From Plaintiff ..............................................................7
F.
Subpoena Requests Nos. 14-21 - Remaining
Documents .......................................................................................8
G.
Subpoena Requests Nos. 1, 9, 13, 22, and 23
– Moot Requests ..............................................................................8
CONCLUSION............................................................................................................................... 9
ii
TABLE OF AUTHORITIES
Cases
Pages
Gonzales v. NBC,
194 F.3d 29 (2d Cir. 1999)......................................................................................................... 2
von Bulow by Auersperg v. von Bulow,
811 F.2d 136, 14 (2d Cir. 1987)................................................................................................. 1
Statutes
42 U.S.C. §1983.............................................................................................................................. 1
F.R..E 801(d)(2).............................................................................................................................. 5
Fed. R. Civ. P. 26............................................................................................................................ 3
Fed. R. Civ. P. 26(b)(5)................................................................................................................... 3
Fed. R. Civ. P. 45(d)(1)................................................................................................................... 2
Fed. R. Civ. P. 45(e)(2)(A) ............................................................................................................. 3
- iii -
PRELIMINARY STATEMENT
Former Village Voice Reporter, Graham Rayman’s objections to the production
of documents subpoenaed by City Defendants fail as a matter of law because this Court has
discretion to apply the federal qualified reporter’s privilege, as plaintiff’s claims are
predominantly based in 42 U.S.C. § 1983. Under the federal qualified reporter’s privileged, the
documents requested are of likely relevance to significant issues raised in this litigation and
cannot be reasonably obtained from other sources.
City Defendants are entitled to all of the materials responsive to the subpoena.
The Court should order Mr. Rayman to immediately comply with City Defendants’ subpoena
and produce all responsive documents in his possession.
ARGUMENT
POINT I
THIS COURT SHOULD EMPLOY THE
FEDERAL
JOURNALIST’S
PRIVILEGE
STANDARD.
Though the parties are not in dispute about the content of the applicable legal
standards regarding a reporter’s privilege under state law and federal law, the question for this
Court is which standard to apply. Mr. Rayman’s Opposition relies on the same cases as City
Defendants to point out that a Court overseeing a case that involves both federal and state claims
is “not bound to follow” but “may consider also the applicable state law.” Opp. at 2-3 (citing von
Bulow by Auersperg v. von Bulow, 811 F.2d 136, 14 (2d Cir. 1987)(emphasis added). In that
same case cited by Mr. Rayman, the Second Circuit, even after consideration of the N.Y. State
“Shield Law” applied the federal privilege. Id. In sum, whether to consider a state law reporter’s
privilege is, at best, discretionary. As this case is one predominantly regarding plaintiff’s federal
civil rights, the federal standard should be applied.
Under the federal privilege standard, non-confidential documents must be
produced where they (1) are “of likely relevance to a significant issue in the case”, and (2) are
“not reasonably obtainable from other available sources.” Gonzales v. NBC, 194 F.3d 29, 36 (2d
Cir. 1999). City Defendants have met the burden required for the production of documents
sought by the City Defendants’ subpoena, and the Court should order Mr. Rayman’s compliance
therewith.
POINT II
THERE IS NO UNDUE HARM OR BURDEN
TO MR. RAYMAN TO COLLECT THE
SUBPOENAED DOCUMENTS.
Mr. Rayman objects to the production of the documents in Demands Nos. 1
through 13, 22, and 23 on the basis that these requests are unduly burdensome. (Mettham Decl.
to 3/5/14 Motion, Exh. C at 2). City Defendants offered to furnish the reasonable and ordinary
costs associated with the duplication and production of the documents requested, thus
eliminating any undue financial harm or burden on Mr. Rayman. However, Mr. Rayman’s
opposition changes course midstream from his original objection and now argues that the
“burden” he is asserting is not financial or a time consideration, but rather a rehashing of the
reporter’s privilege, discussed elsewhere.1 In doing so, Mr. Rayman has not cited to a single case
showing that “undue burden” as defined in Fed. R. Civ. P. 45(d)(1) refers to considerations
outside of those imposed by travel, cost, or time. Because Mr. Rayman has not asserted any
demonstrable burden associated with the subpoena, his objections on this basis should be
rejected and he should be required to produce the documents in Demands Nos. 1 through 13, 22,
and 23.
1
Though interestingly, Mr. Rayman has not asserted this same “burden” with regard to Subpoena Requests Nos. 1421.
2
POINT III
PLAINTIFF HAS WAIVED ANY CLAIMS OF
PRIVILEGE BY FAILING TO COMPLY
WITH FED. R. CIV. P. 45(E)(2)(A) AND ON
HIS
OBJECTIONS
THE
BASIS
OF
VAGUENESS ARE DISINGENUOUS.
Mr. Rayman has not only failed to provide any sort of privilege log to City
Defendants, but has also failed to cite a single case or rule (in this district or any other) that
would tend to support his position that he is not required to produce a privilege log. Instead, Mr.
Rayman has cited to Fed. R. Civ. P. 26 to claim that he is not a “party” and is therefore not
subject to the privilege log requirement. In fact, Fed. R. Civ. P. 45(e)(2)(A) provides the exact
same language regarding the creation of a privilege log for non-parties served with a subpoena as
Fed. R. Civ. P. 26(b)(5) provides for parties in discovery.
Moreover, Mr. Rayman’s claims that the information provided within a privilege
log would violate the reporter’s privilege are disingenuous. By its very terms, with the exception
of Subpoena Requests Nos. 22 and 23, the subpoena seeks only documents provided by plaintiff,
or his father, Larry Schoolcraft. Both individuals have already admitted to e-mailing with and
providing documents to Mr. Rayman. The only possible ambiguity is which documents Mr.
Rayman is in possession of. As the production of a privilege log of documents provided to Mr.
Rayman from plaintiff and his father would not produce any privileged information in and of
itself, Mr. Rayman’s failure to produce such a log is inexcusable.
Moreover, Mr. Rayman cannot use the reporter’s privilege as both a sword and a
shield. Mr. Rayman has at once claimed that he should not be required to produce a privilege log
for the documents received from Messrs. Schoolcraft, while also arguing that City Defendants
must explicitly list every single document with particularity that they seek from Mr. Rayman.
City Defendants would be happy to state which of Mr. Rayman’s documents from Adrian and
3
Larry Schoolcraft are of likely relevance to a significant issue in this case, yet cannot do so
without knowing first what those documents are. Either Mr. Rayman should be required to
produce a privilege log for those documents not explicitly requested by City Defendants on
which to base a more detailed motion to compel, or Mr. Rayman should be required to produce
those documents.
Because Mr. Rayman has failed to provide a privilege log for any of the requested
documents, he has waived any privileges that may have applied, and the Court should order him
to produce those documents to City Defendants.2
POINT IV
DESCRIPTIONS OF RELEVANCE OF
INDIVIDUAL REQUESTS AND THEIR
UNAVAILABILITY BY OTHER MEANS.
A.
Subpoena Requests Nos. 5, 14, and 16 – Written Statements of Schoolcraft
Subpoena Requests Nos. 5, 14, and 16 offer the most telling counter-point to Mr.
Rayman’s argument that “given the multiple sources for information,” a particular document
should not be produced. Mr. Rayman argues that because “roughly a dozen police officers” could
testify about Schoolcraft’s confinement, therefore, a “ten-page single-spaced account Schoolcraft
himself wrote,” in which Schoolcraft discussed a “record of the next six days,” referring to
Adrian Schoolcraft's confinement to Jamaica Hospital Medical Center on or about October 31,
2009 through November 6, 2009 would be irrelevant. However, what is relevant is what plaintiff
recalls. Plaintiff previously lied under oath about the existence of such a document, and City
Defendants believe that this reasonably reflects a conscious attempt to hide a statement that may
2
Mr. Rayman has not responded in any fashion to City Defendants’ arguments regarding the appropriateness of Mr.
Rayman’s claims of “attorney-client” and “attorney work-product” privileges. It thus appears that Mr. Rayman has
withdrawn those objections.
4
be in conflict with later statements made by plaintiff in this lawsuit, including the Complaints
and his deposition testimony.
In fact, Mr. Rayman so much as admits that this document is not privileged, but
instead argues that it is “unreasonably cumulative or duplicative.” There is nothing “cumulative”
or “duplicative” about this statement as City Defendants have never seen or received a copy of
this statement at any time during the course of this litigation. In fact, plaintiff could not even
recall writing it at the time of his first deposition.
Because plaintiff’s ten-page written account
of his time in Jamaica Hospital is a clearly relevant document to material issues of fact in this
lawsuit, would likely be admissible at trial pursuant to F.R.E 801(d)(2), and is not readily
obtainable from any other sources, this Court to order Mr. Rayman to comply with Subpoena
Requests No. 5 to Mr. Grayman for a copy of that specific ten-page account and Subpoena
Request Nos. 14 and 16 for any other written accounts by Adrian Schoolcraft regarding alleged
misconduct by the NYPD and/or his confinement in Jamaica Hospital Medical Center on or
about October 31, 2009 through November 6, 2009.
B.
Subpoena Requests Nos. 2, 3, and 18 - E-Mails to Graham Rayman
Though Mr. Rayman claims that he is “not a custodian of any source’s
documents,” according to plaintiff, Mr. Rayman was in fact the original recipient and the creator
of a vast number of emails exchanged between him and Messrs. Schoolcraft regarding the
subject matter of this lawsuit. It is hard to fathom how Mr. Ryman can now claim that he is not a
custodian of those records by any definition of the term. Moreover, as Messrs. Schoolcraft each
claim that they no longer have any of these emails, Mr. Rayman is in fact the only possible
source for these communications. The Court should therefore order Mr. Rayman to comply with
Subpoena Requests Nos. 2, 3, and 18.
5
C.
Subpoena Requests Nos. 4, 7, 11, 12, 20, and 21 – Recordings
Central to plaintiff’s claims in this matter are the recordings he has made of his
co-workers and the defendants while working as a police officer in the 81st Precinct. In fact,
plaintiff claims that it was the NYPD’s knowledge of these recordings which prompted the
incident that gives rise to this lawsuit. City Defendants have never disputed that they received a
CD of roll call recordings from plaintiff in this matter, however, based on The NYPD Tapes, City
Defendants reasonably believe that plaintiff may have provided Mr. Rayman with 1,000 hours of
recordings from plaintiff, recordings of plaintiff on patrol or in the station house aside from at a
roll call. City Defendants are aware of at least one instance where the recording provided by
plaintiff to parties in this matter was doctored to intentionally omit a conversation that plaintiff
had with his father.3 That omitted portion of the recording was what prompted defendant
Mauriello’s counter-claims in this matter. To the extent Mr. Rayman has similar recordings more
expansive than plaintiff’s selective discovery productions, these recordings would be relevant to
significant issues in this matter, including plaintiff’s motivations and exculpatory statements by
defendants.
Because plaintiff claims to not have access to relevant recordings that he
previously provided to Mr. Rayman, Mr. Rayman appears to be the only known individual who
may still have a copy of these recordings. City Defendants therefore respectfully request that the
Court order Mr. Rayman to comply with Subpoena Requests Nos. 4, 7, 11, 12, 20, and 21.
3
IAB had vouchered a recording device of plaintiff’s with his permission. When IAB downloaded the original file
from the recording device, it contained an additional portion of a recording that was not provided by plaintiff in
discovery.
6
D.
Subpoena Requests No. 6 – Crime Complaint Reports
Mr. Rayman has disingenuously couched Subpoena Request No. 6 as “crime
reports given to Rocco Parascandola.”4 While City Defendants believe plaintiff gave copies of
the Crime Complaint Reports to other reporters, City Defendants reasonably believe that plaintiff
also gave copies of these documents to Mr. Rayman.
As plaintiff claims that these exact documents were stolen from him by City
Defendants, if Mr. Rayman was given copies of them from either Adrian or Larry Schoolcraft,
plaintiff’s claims that the NYPD attempted a prior restraint on him by destroying his evidence of
NYPD misconduct would be defeated. This is a significant and material issue of fact in this
litigation. Therefore, to the extent plaintiff provided any such crime complaints to Mr. Rayman,
City Defendants request that the Court compel Mr. Rayman to produce them to City Defendants.
E.
Subpoena Requests Nos. 8 and 10 - Memoranda From Plaintiff
Plaintiff claims to have written two memoranda regarding NYPD misconduct to
former 81st Precinct Commanding Officer Deputy Inspector Robert Brower in 2006 and 2007,
and apparently gave copies of those memoranda to Mr. Rayman. (Mettham 3/5/14 Decl. Exh. E
at 41, 44). As explained in City Defendants’ original motion, City Defendants have searched and
are unable to locate any record of these memoranda being provided to any employees of the
NYPD. It is a disputed material issue of fact regarding what alleged misconduct plaintiff was
aware of at the 81st Precinct, and whether he was retaliated against as a result of such whistleblowing. Though plaintiff has testified regarding these alleged memoranda, their actual existence
is still disputed. As far as City Defendants are aware, Mr. Rayman is the only individual who
4
Moreover, the applicable federal standard requires only that documents not be reasonably obtained from other
sources. It would be unreasonable to move the Court against two separate journalists to obtain the documents, if
each could argue that the documents were more reasonably obtainable from the other.
7
possibly has a copy of these alleged documents. Accordingly, City Defendants request that the
Court order Mr. Rayman to comply with Subpoena Request Nos. 8 and 10 and produce the
documents if they are in his possession.
F.
Subpoena Requests Nos. 14-21 - Remaining Documents
Plaintiff and Larry Schoolcraft’s recollection regarding which documents and e-
mails they provided to Mr. Rayman is unclear at best. As Mr. Rayman has refused to provide a
privilege log and Messrs. Schoolcraft cannot provide copies of every document and e-mail they
gave to Mr. Rayman, nor can they provide detailed recollections of what was contained within
those documents, City Defendants have no recourse but to ask for all documents provided to Mr.
Rayman from Messrs. Schoolcraft. With the identify of the sources known and acknowledged,
this is a far cry from the straw man argument made by Mr. Rayman regarding unfettered
“sifting” through reporters’ records.
G.
Subpoena Requests Nos. 1, 9, 13, 22, and 23 – Moot Requests
As this Court is has recently ordered plaintiff to produce the document referenced
in Subpoena Request No. 13, that Request is now moot. Similarly, because Mr. Rayman has
stated that he did not pay Messrs. Schoolcraft, Subpoena Requests Nos. 22 and 23 have now
been satisfied. Mr. Rayman has pointed City Defendants to an article written by Len Levitt that
allegedly contains the email he received from Larry Schoolcraft; City Defendants are therefore
willing to withdraw Subpoena Request No. 1. Finally, City Defendants had repeated informed
Mr. Rayman that they withdrew Subpoena Request No. 9 in advance of this motion practice, and
it was never the subject of a motion by City Defendants.
8
CONCLUSION
Defendants therefore request that the Court order Mr. Rayman to immediately
comply with City Defendants' subpoena, and produce any documents and recordings provided to
Mr. Rayman from either plaintiff, or plaintifls father, Larry Schoolcraft.
Dated;
New York, New York
April4,2014
Respectfully submitted,
ZACHARY W. CARTER
Corporation Counsel of the
City of New York
Attorney for City Defendants
100 Church Street, Room 3-200
New York, New York 10007
(212) 3s6-2372
By:
Publicker Mettham
Assistant Corporation Counsel
TO
David S. Korzenik (BY HAND DELIVERY)
Miller Korzenik Sommers LLP
Attorney þr Grahqm Rayman
488 Madison Avenue
New York, NY 10022
Nathaniel Smith (By ECF)
Attorney for Plaintiff
I 1 1 Broadway, Suite 1305
New York, New York 10006
Gregory John Radomisli (By ECF)
Cr-sRRwRrER & BELL LLP
Attorneys for Jamaica Hospital Medicøl Center
220East 42nd Street 13th Floor
New York, NY 10017
M¡.nrn
9
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