Schoolcraft v. The City Of New York et al

Filing 247

OPINION 104239 re: 223 MOTION to Compel Graham Rayman to Produce Documents filed by Kurt Duncan, Gerald Nelson, Timothy Caughey, Thomas Hanley, Elise Hanlon, Robert W. O'Hare, Shantel James, Christopher Broschart, Sondra Wilson, Richard Wall, Theodore Lauterborn, William Gough, Frederick Sawyer, Timothy Trainer, The City Of New York, Michael Marino. Upon the conclusions set forth above, City Defendants' motion to compel is granted with respect to Subpoena Requests Nos. 3, 5, 8, and 10. The City's motion is denied with respect to all other Subpoena Requests. It is so ordered. (Signed by Judge Robert W. Sweet on 4/18/2014) (ajs) Modified on 4/24/2014 (nt).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-- --- -------------- --- ------ --- ---X
ADRIAN SCHOOLCRAFT,
Plaintiff,
10 Civ. 6005
- against ­
OPINION
CITY OF NEW YORK, et al.,
Defendants.

---X
A P PEA RAN C E S:
Att

he Plaintiff

LAW OFFICE OF NATHANIEL B. SMITH

111 Broadway

Suite 1305

New York, NY 10006

By:
Nathaniel B. Smith, Esq.

for the

Defendants

MICHAEL A. CARDOZO
CORPORATION COUNSEL OF THE CITY OF NEW YORK
100 Church Street
New York, NY 10007
By:
Suzanna P. Mettham, Esq.

Attorneys for Non-Party Journalist Graham Rayman
MILLER KORZENIK SOMMERS LLP

488 Madison Avenue

New York, NY 10022

By:
David S. Korzenik, Esq.

Sweet, D.J.

Defendant
Defendants")
("Rayman" )

has
to

City
moved

produce

Schoolcraft v.

of
to

New

York

compel

documents

related

to

or

"City

Graham

non-party

ty of New Yorkr et al.,

conclusions set forth below,

y"

("C

Rayman

the

matter

10 Civ. 6005.

City Defendants'

of

Upon the

motion is granted

in part and denied in part.

Prior Proceedings

A
case
which

is

tailed recitation of the

provided

granted

in

this
part

Court's

and

facts

opinion

denied

in

dated

part

6,

2011).

involves

May

Familiarity with those facts is assumed.
brought

by

Plaintiff

("Plaintiff" or "Schoolcraft")
dated September 25,

2012

Adrian

and others (collect

2011,
Jamaica

(S.D.N.Y. May
The action
Schoolcra

the Second Amended Complaint,

(the "SAC")

against the City,

members of the New York City Police Department
Hospital Medical Center

6,

See Schoolcraft v.

10 Civ. 6005, 2011 WL 1758635, at *1

claims

underlying

Defendant

Hospital Medical Center's motion to dismiss.
City of N.Y.,

of the

("JHMC"),

Jamaica

two doctors employed by JHMC,

ly the "Defendants").

1

("NYPD"),

several

The instant motion invo
3,

2013

served

by

the

City

on

s

a subpoena dated December

Rayman

(the

Subpoena had a return date of December 20,
was

made

several

after

of

City

these

Defendants

documents

learned

from Rayman's

"Subpoena").

The Subpoena

2013.
of

The

the

existence

book,

NYPD

of

Tapes

(the "Book") .

The
"Subpoena

Subpoena

Requests")

and

23

makes
seeks

requests

the

("Requests"

following

or

information

or

(Subpoena Requests Nos.

5,

documents from Rayman:

• Written statements by Plaintiff
14 and 16);

• E-mails to Rayman (Subpoena Requests Nos. 2, 3 and 18);

• Recordings

Defendants
21) ;

made
by
Plainti ff
of
his
(Subpoena Requests Nos. 4, 7,

• Crime complaint

s

and
and

(Subpoena Request No.6):

• Memoranda
from
aintiff
regarding
(Subpoena Requests Nos. 8 and 10);
• Letter firing p

co-workers
11, 12, 20

NYPD

misconduct

or counsel (Subpoena Requests No. 13);

• Documents
ved
from
Larry
Requests Nos. 15, 17 and 19);

Schoolcraft

(Subpoena

• Agreements and/or contracts between Rayman and Schoolcraft
and Larry Schoolcraft (Subpoena Requests Nos. 22 and 23):
• Other documents

(Subpoena Requests Nos. 14-21); and

• Moot requests (Subpoena Requests Nos. 1, 9, 13, 22 and 23).
2

To date,

Rayman

has

He has cited reporter's priv
Requests,

as

well

as

not

complied

with

the

Subpoena.

ege regarding all of the Subpoena

claimed that

several of the
Subsequently,

unduly burdensome or too vague.

filed the instant motion to compel on March 5,
was submitted by the City and Rayman;

requests

are

City Defendants
2014.

B

ng

oral arguments were held

and the matter was marked fully submitted on April 8, 2014.

The Applicable Standard

Federal Rules of Civil Procedure 37 permits a party to
move for an order compelling disclosure or discovery from a nonparty to an action.

See Fed. R.

v. P. 37(a) (2).

A court must

quash or modify a subpoena that "requires disclosure of
privileged or other protected matter, if no exception or waiver
applies."

See Fed. R. Civ. P. 45 (d) (3) (iii).

Both the Second Circuit and New York State law
recognizes the existence of a qualified reporter's privilege.
The Second Circuit has recognized a qualified reporter's
privilege, based in the First Amendment and federal common law,
which protects journalists from having to produce information
obtained during the course of newsgathering.
3

See, e.g.,

Gonzales v. National Broadcasting Co., 194 F.3d 29, 35 (2d Cir.

1999); In re Petroleum Prods. Antitrust Litig.
Prods.),

680 F.2d 5, 7-8

(2d Cir.

470 F.2d 778

42

F.3d 297,
754

1982); Baker v.

(2d Cir. 2011); Chevron Corp. v. Berlinger,

In re McCray,

306 (2d Cir. 2011);

(S.D.N.Y. 2013), adopted, No. 03 Civ.

6970907, at *4
04 Civ.397
Sept.
noncon

(RLE), 20

629

928 F. Supp. 2d 748,

9685

(DAB), 2013 WL

(S.D.N.Y., Sept. 23, 2013); Sokolow v.

(GBD)

6, 2012).

F & F Inv.,

See also United States v. Treacy,

(2d Cir. 1972).

639 F.3d 32,

(Petroleum

PLO, No.

U.S. Dist. LEXIS 127040 (S.D.N.Y.

The privilege protects both confidential and

dential information.

Gonzales,

194 F.3d at 35-36.

The privilege seeks to prevent the unnecessary
enmeshing of the press in liti
they cover.

Id. at 35.

tion that arises from events
lege, which exists to support

"The pr

press's important public service function to seek and reveal
truthful

formation,

protects news

the ring efforts from the

burdensome wholesale production of press files that risk
impeding the press in performing its duties."
F. Supp. 2d at 753

In re McCray,

(internal citations omitted) .

Gonzales sets out two tests for invocation of the
privi

, one applicable to instances where the sought-after

evidence pertains to confidential information and the second
4

928

applicable to subpoenas where no confidential material is
involved.
a

City Defendants seek in

rmation from Rayman in which

iff is identified as the source

the Book.

Rayman has

not contended nor established that the information he received
from Schoolcra

was conveyed in confidence.

Where, as here,

the information comes from a nonconfidential source, the
Gonzales test for nonconfidential

formation applies.

Gonzales, 194 F.3d at 32-33; see also Schiller v. City of New
York,

245 F.R.D. 112, 119-20 (S.D.N.Y. 2007)

(finding

information at issue was not conveyed in confidence where
conveyers of information understood that

could be made

public) .

Under t

Gonzales test for non-confidential

information "the nature
pr

the press

lege is narrower.

erest protected by the

when protection of

confidentiality is not at stake, the privilege should be more
easily overcome."

Id. at 36.

Under this test, a subpoena must

be quashed unless the issuing party demonstrates (1) "that the
materials at issue are of likely relevance to a signi
issue

cant

the case," and (2) the materials at issue "are not

reasonably obtainable from other available sources."

Id.

The

showing needed to overcome the privilege is less than the "clear
and specific" showing required under the test for confidential
5

information.

zales requires t

first prong of
to compel

sc

sure to demonstrate that the

is of "likely relevance" and

Gonzales, 194 F.

the case.
757-58.

s to a "signi
at 36; McCray,

party seeking
rmation sought

cant issue" in
928 F. Supp. 2d at

relevancy requirement is not met if the informat
subpoena is merely duplicative or serving a

sought in

"solely cumulative purpose."
70, 76 (2d
than

r. 1983).

United States v. Burke, 700 F.2d

While "this standa

which applies to confidential mat

seeking nonconfidential materials will not

Sikelianos v.

access."

ty of N.Y.,

is less exact
als, a liti
granted un

tered

No. 05 Civ. 7673, 2008 WL

2465120, at *1 (S.D.N.Y. June 18, 2008).

The second

of Gonzales

subpoenas to make reasonable efforts
the

ough discovery to obtain

rmation from alternative sources to defeat the
lege.

in

Exhaust

rmation is somet
1

Prods.

of all other available sources of
s required.

(In re Na tional Broa

353 (2d Cir. 1996)

(9th Cir. 1993)

Seer e.g., Krase v. Graco
sting Co.), 79 F.3d 346,

iring that party seeking journalist's

v. Shoen, 5 F.3d 1289,

materials exhaust alternatives);
12

ires the issuers of

(stating exhaustion of alternate sources is
6

early in the discovery process); Petroleum

nearly implausib

Prods., 680 F.2d at 9 (holding that even though 100 witnesses
had been deposed, that was not sufficient to establish
exhaustion); Zerilli v. Smith,
1981)

656 F.2d 70S, 713

(D.C. Cir.

(requiring subpoenaing party to show "he has exhausted

every reasonable alternative source of information"); Carey v.

Hume, 492 F.2d 631, 638 (D.C.
appropriate be

r. 1974)

(60 depositions may be

re compelling reporter to testify); In re

McCray, 928 F. Supp. 2d 748, 758 (S.D.N.Y. 2013)

("Defendants

have failed to establish that the information sought is not
obtainable elsewhere"); Application of Behar, 779 F. Supp. 273,
276 (S.D.N.Y. 1991)

(stating alternate sources, including

depositions, must first be exhausted

fore any deposition

seeking privileged information would be warranted); Hutira v.

Islamic Republic of Iran, 211 F. Supp. 2d 115, 120 n.4 (D. D.C.
2002)

(failure to exhaust alternative sources weighed "so

heavily in favor of quashing the subpoena" that court declined
to consider the remaining analysis).

Reporter's privilege is also recognized under the New
York Shield Law, N.Y. Civ. Rights Law

§

79-h.

New York Shield

law provides qualified protection for "nonconfidential news."
N.Y. Civ. Rights Law

§

79-h(c).

To obtain any such

nonconfidential information, a party must make a "clear and
7

specific showing" that the information "(i) is highly material
and relevant;

(ii) is critical or necessary to the maintenance

of a party's claim.
alternative source."

and (iii) is not obtainable from any
Id.;

see also Holmes v. Winter,

694,699,22 N.Y.3d 300,362,980 N.Y.S.2d 357

3 N.E.3d

(N.Y. 2013).

The SAC alleges federal claims and state law claims
under the Court's supplemental jurisdiction.
397).

(See SAC

'TI'TI

255­

Rayman raises New York State Shield Law as a ground for

asserting privilege on the information related to Plaintiff's
state law claims.

However, "asserted privileges in actions that

raise both federal and pendent state law claims are governed by
the principles of federal law."

In re McCray,

928 F. Supp. 2d

at 753; see also von Bulow by Auersperg v. von Bulow, 811 F.2d
136, 144

(2d Cir. 1987)

(stating that court "may consider

the applicable state law," but that it "[was] not bound to
follow New York law").

Moreover, "the federal and state

policies" on nonconfidential reporter's privilege "are
'congruent.'"

In re McCray,

Bulow, 811 F.2d at 144).

928 F. Supp. 2d at 753

(citing von

"Both reflect a paramount public

interest in the maintenance of a vigorous, aggressive and
independent press capable of participating in robust, unfettered
debate over controversial matters, an interest which has always
been a principal concern of the First Amendment."
8

Id.

(internal

quotation marks and citations omitted).
and

The Plainti

's federal

e law claims conflate and overlap in issues

substantially.
both

The appropr

action in this instance, where

federal and state pOlicies reflect the

same

i

s, is to consi

arti

ally

ation of the privil

motion under t

deral

City Defendants' Motion Is Granted In Part And Denied In Part

ty Defendants have
of which seek
seek spe

23 Subpoena Requests, some

ific documents

Rayman.

fic information, but ra

Others do not

r whole categories of

documents.

As an
Rayman has wai
privilege log.

ial matter, City Defendants contend that
his privilege because
City Defendants has

26(b) (5) (ii), but Rule 26(b) (5) (ii) is
assertion of pri
nonparties to

Rule 45 (e) (2)

t

has not provided a
R. Civ. P.

c to a party's
does require

a privilege log, but there is no relevant

case law in this Circuit regarding whether the press can waive
its Gonzales pr

from failing to
9

a privilege log

three months a

er the service of t

subpoena.

As the Second Circuit noted in Gonzales:

If the parties to any lawsuit were free to subpoena
the press at will, it would likely become standard
operating procedure for those litigating against an
entity that had been the subject of press attention to
sift through press fi
s in search of information
supporting their claims.
The resulting wholesale
exposure of press files to 1 igant scrutiny would
burden the press with heavy costs of subpoena
compliance, and could otherwise impair its ability to
perform its duties-particularly if potential sources
were
erred from speaking to the press, or insis
on remaining anonymous, because of the likelihood that
they would be sucked into litigation.
Incentives
would also a se
press entities to clean out files
containing potentially valuable in
ion
st they
incur substantial costs in the event of future
subpoenas.
And permitting litigants unrestricted,
court-enforced access to journalistic resources would
risk the symbolic harm of making journalists appear to
be an investigative arm of
judicial system, the
government, or
ivate parties.

194 F.3d at 35.

The "heavy costs of subpoena compliance" would be a
significant issue if reporters have to immediately prepare a
ivilege log upon being served with a subpoena.

Such a

requirement would incur a heavy burden on the press that would
inhibit its ability to perform its duties.

This is especially

true where City Defendants seek "any written accounts" or "any
10

documents, emails, text messages, and/or recordings" of several
categories of issues (See Mettham Decl. Ex. A); any ef

ss-than-a-month long

lege log by t

Rayman to produce a

rt by

period af
costly

extremely t

been

rded by the Subpoena's return date would
consuming.

privi

icy reasons for the

here would serve against

privi

Finding waiver of

delineated in Gonzales.

That is not to say that it is impossible

r Rayman to

waive his privilege in the future if he fails to
pr

1

log.

Seer e.g.,

In re Application of

736 F. Supp. 2d 773, 782 (S.D.N.Y. 2010)
d no persuas
c

reason why

im privilege

provi
pr

ng a pr

should not be compelled to
r litigant­

log enumerating the documents as to which

lege is claimed and including as to each s

as may be necessa

to make out

journalist privil

").

a

Corp.,

(noting journalist "has

the same manner as any
1

de a

information

s claim of qualified

However, given the not

reasons

finding waiver in this instance, the lack of a privil

log does not waive Rayman's pri

ge at this t

Defendants r General Subpoena Requests

11

Subpoena Requests Nos. 14 through 21 are generalized
subpoena requests for documents regarding the issues in
case.

is

These requests do not described with any particular

detail as to what documents the City seeks.

Subpoena Request

No. 14, for example, seeks "[a]ny written account of Larry
regarding alleged misconduct by any current or

Schoolcra

former members of the NYPD not otherwise listed above."

The reporter's privilege protects the press from
wholesale

scovery of its documents.

The privil

journalists from a party's "unfettered access to 'si
[journalists]
aims.'"

les in sea

protects
through

of information supporting [his]

kelianos, 2008 WL 2465120, at *1

194 F.3d at 35 (alterations in original)).

(quoting Gonzales,

The Subpoena

Requests were made without particularity and essentially seek
despread access to all of Rayman's fi
of press

les to 1

s.

Wholesale exposure

igation scrutiny is an impermissible

burden, Gonzales, 194 F.3d at 35, and the motion is denied with
respect to t

se requests.

The Written Statements of Plaintiff Regarding Confinement At
JHMC Are Not Protected

Subpoena Request No. 5 seeks the written statements of

12

Plaintiff regarding Plaintiff's confinement at JHMC,
cifically a "ten-pa
himself wrote."

single-spa

(Reply at 4).

account Schoolcraft

City Defendants initially

inquired about any written statements by Plaintiff rega
confinement at JHMC in Plaintiff's

sition, to which

Plaintiff denied having done so.
266:25-267:8).

his

(Mettham Decl. Ex. D at

The Book was subsequently published, and

stated that Plaintiff provided Rayman with this ten-page account
in

Schoolcra

September 17, 2013,
document.
2013

Defendants requested

On

aintiff

Plaintiff responded by letter dated October 23,

Plaintiff "has looked

s files
Ex.

discusses his confinement in JMC.

has not

r

[the ten-page account] in

able to locate it."

(Mettham Decl.

G).

PIa

iff's ten-page account of his t

concerns one of the central issues in
document is thus c

at JHMC

aintiff's claims; the

rly relevant to the litigation.

However,

contends that the information contained in Schoolcraft's
written account is available to the City, given that Plaintiff,
several

r police officers and the supe

sors, nursing staff

and psychiatric staff at JHMC have provided testimony regarding
the incident.

Rayman's inte

retation of the information the

ty is seeking is too limited.

If the City sought the document
13

only to impeach Plaintiff's testimony of his time at JHMC
relevancy of

document is doubt

1 g

the number of

witnesses that can provide an account of
Burke, 700 F.2d at 78

issue.

r

See, e. g.,

(where witness was impeached by other

evidence, reporter's privilege was not defeated as the
information would serve solely cumulative purposes).
factual accounts

the ten-page

But

also provide PIa

iff's

impression at the time of writing of his confinement at JHMC.
This information is relevant to issues beyond impea
speaks directly to the events at

Wi

hospital.

regards to the availability of the document from
s seek the t

other available sources, City De
statement

and

y after depos

ion of the plaintiff and Plaintiff's

statement that he is not in possession of the document.
information sought is thus not available through
City De

s have shown

's motion with

sources.

the material is not reasonably

obtainable from other available sources.
De

The

As such, C

to Subpoena Re

granted.

Several E-mails To Rayman Sought By The Ci

14

Y

st No.5 is

Subpoena

quest Nos. 2 and 3 seek emails from

Schoolcraft or his fat

r, Larry Schoolcraft ("Larry

Schoolcraft") to Rayman.

emails

stating, "Nothing has changed
. Pay me or fire me .

lude the

PI

iff

rding my [suspension] status
I'm never quitting

and an excerpt from a tape of an NYPD se

. Never!"

ant.

ham Decl.

Ex. A).

The emails are re

to the claims and

fenses of

the instant action, as they relate to the events surrounding
Plaintiff's di

ssal from the NYPD and Plaintiff's motivations

for his actions, central issues to Plaintiff's and

ty

Defendants' claims.

s have previously requested

City De

intiff any emails sent to and
journalists.

(Mettham Decl. Ex. H).

In response,

to City Defendants and the Court that,

repre

some previously disclo
have

Schoolcra

contact

of these statements.

to
P

intiff
r than

th journalists, he did not

(Id. Ex. J).

Plaintiff later

admitted that he had been in email contact with Rayman, but
cated that he "does not have access to his old email
communications wi
deposition."

the press that he was examined about at his

(Id. Ex. G).
15

With respect to the email regarding Schoolcra
suspension status, only Plaintiff, the re
individuals with whom Plaintiff or

rmation on the document.

yother individuals who would

access other

Plaintiff or Rayman are other journalists.
aintiff's inabil

ent and any

recipient shared this

email would have access to the in

169) .

's

The

n

(Id. Ex. E at 155,

y to produce this document and

ty

Defendants' exploration of other possible avenues of obtaining
the document demonstrates that the information cannot be
reasonably obtained from other available sources.

The motion is

granted with regards to Subpoena Request No.3.

With respect to the email containing an excerpt from a
tape of an NYPD sergeant, City Defendants have not provided a
parti

rized explanation as to why they are see

City Defendants
the tape excerpt.
aintiff, and

email

sumably want t

r its

ng t
format

email;
on

Defendants have numerous recordings from
City

s not indicated whether they

recording the email transcribes.

the

City Defendants have not shown

that they are unable to reasonably obtain the information
contai

in

is denied with re

email

alternative sources, and the motion
to Subpoena Request No.2.

16

s Co Workers And

Request Nos. 4, 7, 11, 12, 20 and 21 seek
recordings

by Schoolcraft and

ded to Rayman.

Defendants state that they have rece
Plaintiff,

are concerned t

produced t

t

recordings from

Plaintiff may not

entirety or all of his recordings.

The City

several recordings mentioned in the Book were not

contends

produced by Plaintiff: Subpoena Request Nos.
to
PIa

City

that the De
iff.

7, 11 and 12 refer

s did not rece

City Defendants

from

not made any particula

zed

statement regarding Subpoena

st Nos. 4, 20

21, which

seek

ngs made by

craft and

CD containing all

provided to Rayman, any recordings regarding all
by
conf

NYP~

misconduct

and any recordings regarding Schoolcraft's
at JHMC.

(Met

City Defendants

Declo Ex. A).

not shown

any of the

recordings are relevant to the litigation.
central contention re
they were not

City Defendants

ng the relevancy of these tapes is
by Plaintiff but mentioned in the

The City has not provided any
why the actual content of the recordings

fic arguments as to
s to a "significant

17

........

- - - - - _.............

__. _ ­

issue" in the case.
Ci

Gonzales, 194 F.3d at 36.

Moreover, t

has information as to Plaintiff's failure to produce

recordings, including a recording obtained by the Internal
fairs Bureau of the NYPD ("lAB").

(Reply at 6).

Defendants seek these recordings for a "so
purpose," to show that Plaintiff alte
which cannot

ly cumulat

potential

reporter's privilege.

dence,

Burke, 700 F.2d

Motion is denied with regards to Subpoena Request

at 78.
Nos. 4,

feat t

ty

7, 11, 12, 20 and 21.

s Are Protected Documents

The Crime

Subpoena Request No.
crime reports [Schoolcra

6 seeks a copy of "questionable

] gave [the NYPD's Quality Assurance

vision ('QAD'] which Schoolcra
Parascandola."
that

provided to Rocco

(Mettham Decl. Ex. A).

NYPD "stole" these cr

Plaintiff has

imed

complaint reports from

intiff's apartment on October 31, 2009.

The Book suggests

that Plaintiff provided the crime complaint reports to Rayman
following

October 31, 2009 incident.

City Defendants seek information as to the veracity of
Plaintiff's allegations and whether or not Plaintiff was still
in possession of the reports after the October 31, 2009
18

incident.
this

However, Subpoena Request No.6 wou

not provide

formation for the former, only the latter.

y

The

contends that possession of the reports by Rayman would
exonerate the City with res
NYPD stole his evidence

ct to Plaintiff's claims that
NYPD misconduct.

But City Defendants

have not sufficiently shown how Rayman's possession of the crime
complaint reports or a copy thereof would be relevant to
PIa

iff's allegations of the
t PIa

reports.
mot

,and the City has not claimed

iff has denied having

ies of the crime compla

The relevant issue is

NYPD's conduct and

ion for such in the October 31, 2009 incident.

Obtaining

copies of the reports in Rayman's possession would not provi
any

ight as to the truth of Plaintiff's version of the

October 31, 2009 inci

C

y's motion with regards to

the crime complaint reports is denied.

The Memoranda From Plaintiff Regarding NYPD Misconduct
Is Not

Subpoena Requests Nos. 8 and 10 seek two written
memoranda Plaintiff alleges to have written to

rmer 91st

Precinct Commanding Officer Deputy Inspector Robert Brower in
2006 and 2007 r

rding NYPD

sconduct.

Book indicates

that Plaintiff provided copies of these memoranda to Rayman.

19

1. Ex. E at 41, 44).

(Mettham

City Defendants have searched

for and are unable to locate any record of these memoranda being
provided to any employees of the NYPD.

o

red

The Court has previously

intiff to produce the memoranda, but Plaintiff

insists that the memoranda are no longer

PIa

iff's

possess

The

stence of the memoranda and the information

contained therein are relevant to PIa

iff's claims of

retaliation from his whistle-blowing of illegal practices at the
81st Precinct.

It is a

sputed material issue of

regarding what alleged misconduct

aintiff was aware of at the

81st Precinct, whether he was retaliated against as a result of
such whistle-blowing and whether

memoranda actually exists.

memoranda would provide

Obtaining

formation on all of

these issues.

While the Plaintiff has testi
all

ed regarding

se

memoranda, the memoranda have not been produced through

discovery and the NYPD and City Defendants have been unable to
locate them.

As far as City Defendants are aware, Rayman is the

only individual who has a copy of these documents.
Defendants have shown that the memoranda are of like

City
relevance

to a significant issue that is not reasonably obtained from
20

other available sources.

The motion with regards to Subpoena

Requests Nos. 8 and 10 is granted.

Letter Firin

Prior Counsel Are Protected

Subpoena Request No. 13 seeks a letter from Plaintiff
firing his prior counsel.

City Defendants contend that the

letter indicates that Plaintiff had fired his pr

r counsel

"a more media-driven, public airing than is

because he want

(Def. Br. at 15).

now occurring" in the litigation.
statement was refe

This

an article by Leonard Levitt.

to

City

Defendants note that at oral arguments on November 13, 2013,
Plaintiff made representations to this Court t
statement was

Ise.

the Levitt

The Court permitted the City to depose

aintiff to determine whether

provided a copy of this

document to any third parties; City Defendants noticed
aintiff's deposition but also of
avoid the deposition if

agre

red Plaintiff the ability to
to sign an affidavit

indicating that he did not provide the document to any third
parties.

PIa

iff has refused to sit for the deposition or

sign the proposed affidavit.
have a copy of the letter.

Book suggests that Rayman may
(Mettham Decl. Ex. E at 240).

ty Defendants have not shown that
21

letter or

Rayman's possession of the letter is a "significant issue in the
case."

The City has the Levitt article and the Book, both of

which refer to the letter.

City Defendants seek the letter

presumably to show Plaintiff as a source of media "leaks," which
the City contends have plagued this lawsuit.

Notwithstanding

this concern, media leaks are peripheral issues in this
litigation and not a significant issue in the parties' cases.
The City has not shown the relevancy of the letter, or how it is
important to any of the issues raised by Plaintiff's or
Defendants' cases.

Given such, the motion with respect to

Subpoena Request No. 13 is denied.

The Documents Received From Larry Schoolcraft
Are Protected By Privilege

Subpoena Requests Nos. 15, 17 and 19 seek documents in
the possession of Rayman that he received from Larry
Schoolcraft.

Larry Schoolcraft was ordered by the Honorable

Judge Peebles in the Northern District of New York to appear for
a deposition and to produce the requested documents on December
11, 2013.

(Mettham Decl. Ex. N).

However, no documents were

brought by Larry Schoolcraft to his deposition.

As an initial matter, City Defendants seek these

22

s based on their belief that Larry Schoolcra
s to Rayman.

The City does not know what

s, if any, were actually provided.

They have not

any information as to whether Rayman even
documents.

cific

s

As previously noted, a party "will not be

un

access to 'sift through [journalists] fi

of

ion supporting [his] claims.'u

2465120, at *1
original)}.

(quoting Gonzales, 194 F.

City Defendants, with

s

search

ianos, 2008 WL

at 35 (alterations in

se

sts in

the Subpoena, has failed to make the necessa

showing to

overcome the asserted privilege.

The Agreements And Contracts Between

Subpoena Requests Nos. 22 and 23 seek any agreements,
contracts or proof of payment to S
Schoolcraft from Rayman.

lcra

s seek this information

De

on the grounds that whether Plaintiff
story regarding NYPD mis

any information as to
reasonably obta
possible that

any money from his

bares on Plaintiff's bias and
s lawsuit.

motivations in

or Larry

The City has not provided

information at issue is not
from other available sources.

r

It is

aintiff or Larry Schoolcraft recei

23

payment from Rayman can be determined from other documentary
evidence or from the deposition of Plaintiff or Larry
Schoolcraft.
e.g.,

Thus, these requests cannot be compelled.

Sikelianos,

2008 WL 2465120, at *1

See,

(where information

sought was available from other sources, privilege could not be
overcome) .

The Motion Is Denied With Respect To Moot Requests

Due to intervening circumstances, Subpoena Requests
Nos. 1, 9, 13, 22 and 23 are now moot.

The motion with respect

to these Subpoena Requests is denied.

There Is No Undue Harm Or Burden On Rayman

Rayman has objected to the production of the documents
in Subpoena Requests Nos. 1 through 13, 22 and 23 on the basis
that these requests are unduly burdensome.

With regards to the

Requests that are not protected by privilege, the Subpoena
provides substantial detail as to the exact document it seeks.
Finding such documents will likely not cause Rayman a
significant amount of time or cost, and the Subpoena with
respect to these documents will not cause undue harm or burden
on Rayman.
24

Conclusion

s'

Upon the conclusions set forth above, City De
mot

to compel is granted with respect to

Nos. 3, 5, 8 and 10.

The City's motion is

sts
re

to all other Subpoena Requests.

It is so ordered.

New York, NY
April ,~, 2014

ROBERT W. SWEET
U.S.D.J.

25