Schoolcraft v. The City Of New York et al

Filing 269

FILING ERROR - ELECTRONIC FILING OF NON-ECF DOCUMENT - LETTER MOTION for Local Rule 37.2 Conference Motion to Compel Plaintiff's Expert Discovery addressed to Judge Robert W. Sweet from Suzanna Publicker Mettham dated September 4, 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). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Mettham, Suzanna) Modified on 9/5/2014 (db).

EXHIBIT B

THe Crrv oF NEWYonr

L¡.w DEp¡.RTMENT

ZACHARY W. CARTER

SUZANNA PUBLICKER METTHAM

CHURCH STREET
NEW YORK, NEW YORK IOOOT

Corporation Counsel

IOO

A ss

is

lan I C or pora li on C ou n se

August 15,2014

BY FIRST CLASS MAIL & E.MAIL
Nathaniel Smith
Attorney for Plaintiff
Broadway, Suite 1305
New York, New York 10006

lll

Re:

Schoolcraft v, The City of New York. et al,
r0 cv 6005 (Rws)

Counsel

City Defendants write in regard to certain deficiencies in plaintiffs expert
disclosures pursuant to Fed. R. Civ. P. 26(a)(2)(B) in the above-referenced action. These
deficiencies are as follows:

A.

Dr. Roy H. Lubit

Neither plaintiff nor his expert, Dr. Roy Lubit, have disclosed the cases in which
Dr. Lubit has testified at trial andlor deposition for the past four (4) years as required by Rule
26(a)(2)(BXv). Additionally, neither plaintiff nor his expert, Dr. Roy Lubit, have provided a
statement of the fees for the aforesaid expert's study as required by Rule 26(aX2XBXvi).

B.

I

E-mail : [e-mail]
Phone: [phone]
Fax: (212) 78&-9776

Dr. Dan Helpren-Ruder

Neither plaintiff nor his expert, Dr. Dan Halpren-Ruder, have disclosed the cases
in which Dr. Halpren-Ruder has testified at trial and/or deposition for the past four (4) years as
required by Rule 26(a)(2)(BXv). Additionally, neither plaintiff nor his expert, Dr. Dan HalprenRuder, have provided a statement of the fees for the aforesaid expert's study as required by Rule
26(a)(2)(BXvi). Finally, neither plaintiff nor his expert, Dr. Dan Helpren-Ruder, have identified
the data considered by the witness in forming his opinions as required by Rule 26(a)(2XBXii).
Specifically, while Dr. Halpren-Ruder's report at times mentions "audiotapes" and "audio
records", (p.2), which are not clearly identified, however neither the expert report, nor Plaintiff s
Supplemental Expert Disclosures dated August 13, 2014 indicate that Dr, Halpren-Ruder
reviewed any audiotapes. Please therefore provide a complete list of the documents, facts, and
data relied upon by this expert in reaching his opinions.

C.

Eli B. Silverman & John A. Eterno

Neither plaintiff nor his experts, Eli Silverman and John Eterno, have disclosed
the cases in which they have testified at trial and/or deposition for the past four (4) years as
required by Rule 26(a)(2)(B)(v). Additionally, neither plaintiff nor his experts, Eli Silverman and
John Eterno, have provided a statement of the fees for the aforesaid experts' study as required by
Rule 26(a)(2XBXvi).
Importantly, neither plaintiff nor his experts, Eli Silverman and John Eterno, have
identified the data considered by the witness in forming his opinions as required by Rule
26(a)(2)(B)(ii). Specifically, the Silverman & Eterno expert report repeatedly makes such
statements as "our research has uncovered current occurrences of similar practices" (p. 6) and
"[t]he evidence of overwhelming pressures which lead to illegal quotas on summonses, arrests,
and forcible stops as well as downgrading crime reports is reflected in union statements, media
accounts, non NYPD data sources, accounts of whistleblowers, court cases (Floyd v City of New
York) and our research" (p. 4). However, this "research", the "data sources", evidence regarding
Officer Polanco and Sergeant Borrelli, and the claimed PBA statements have not been produced
in this matter. Additionally, the report references "hospital data, available through 2006" , (p. I 1),
however the exact source of the data, and the data itself has not been produced. Moreover, the
expert report identifies research conducted by Silverman and Eterno, but the data underlying that
research has not been produced. Accordingly, in addition to the data and documentation already
requested, City Defendants demand all documentation regarding the 2008 and 2012 surveys
conducted by Professors Jon Eterno and Eli Silverman, including but not limited to:

L

The list of retirees that Professors Silverman and/or Eterno mailed their surveys
to, including the names and contact information of those individuals;

2.

Any Freedom of Information Law Requests made by Professors Silverman andlor
Eterno used to obtain retiree contact information;

3. Any and all communications between Professors Silverman and/or Eterno and the
New York City Police Department, or any employees thereof, regarding the 2008
and2012 surveys, however served, electronic or otherwise;

4. Any and all raw data relied upon by Professors

Silverman and/or Eterno,
including but not limited to, the completed surveys received by Professors
Silverman andlor Eterno for both the 2008 and20I2 suveys;

5. Any electronic

databases created or utilized
Eterno in their analysis of the raw data;

by Professors Silverman

6. Any notes created by Professors Eterno andlor Silverman regarding

andlor

the 2008 and

2012 surveys;

7. A list of any other researchers

or professors who aided Professors Eterno andlor
Silverman in their analysis of the 2008 and 2012 survey data;

8. Drafts of the articles

and surveys used by Professors Silverman andlor Eterno;
2

9.

Documentation regarding any prior surveys
Silverman and/or Eterno in this area; and

or articles created by

Professors

lO.Any and all documents not specif,red above that bear on the 2008 and 2012
surveys conducted by Professors Eterno and Silverman and/or the articles
published regarding those surveys.

D.

Confidentialitv Stipulations

As you are no doubt aware, the Confidentiality Stipulation and Attorneys' Eyes
Only Confidentiality Stipulation in place in this matter require that "[b]efore any disclosure is
made to a person listed in subparagraph (a) or (b) above (other than to the Court), plaintiff and
Co-Defendants shall provide each such person with a copy of this Stipulation and Protective
Order, and such person shall consent in writing, in the form annexed hereto as Exhibit A not to
use the Confidential Materials for any purpose other than in connection with the prosecution or
defense of this case and not to funher disclose the Confidential Materials except in testimony
taken in this case, or attached to motions, affrdavits or declarations submitted to the Court, which
have been redacted for ECF f,rling pursuant to the provisions of paragraph 6, infra. The signed
consent shall be retained by plaintiffs attorney and/or Co-Defendantsr attorneys and a copy shall
be furnished to City Defendants' attorney within ten (10) days." It is apparent from the plaintiff s
expert disclosures that confidential and Attorneys' Eyes Only Confidential documents were
provided to some, if not all, of plaintiffs experts. However, no signed consent forms have been
provided to City Defendants' attorneys heretofore in this matter.

E.

Conclusion
Please immediately forward the aforementioned information, documentation from

plaintiffls experts, and signed consent forms for any of plaintifls experts whom were shown
confidential documents to avoid unnecessary Court intervention.
Encl

y yours,

Suzanna Publicker Mettham
Assistant Corporation Couns el
Special Federal Litigation Division
cg

Gregory John Radomisli (By First-Class Mail &, E-Mail)
MRRTTN CISRRwRTER & BELL LLP
Attorneys for Jamaica Hospital Medical Center
220 East 42nd Street l3th Floor
New York, NY 10017

J

Brian Lee (By First-Class Mail & E-Mail)
IVONE, DEVINE & JENSEN, LLP
Attorneys for Dr. Isak Isakov
2001 Marcus Avenue, Suite N100
Lake Success, New York 11042
Bruce M. Brady (By First-Class Mail & E-Mail)
CALLAN, KOSTER, BRADY & BRENNAN, LLP
Attorneys for Lillian Aldanø-Bernier
1 'Whitehall Street
New York, New York 10004

Walter A. Kretz , Jr. (By First-Class Mail & E-Mail)
SCOPPETTA SEIFF KRETZ & ABERCROMBIE
Attorney for Defendant Mauriello
444 Madison Avenue, 30th Floor
New York, NY 10022

4

DECLARATION OF SERVICE BY MAIL

I, Suzanna Publicker Mettham, declare, pursuant to 28 U,S.C. S 1746, under penalty of perjury
that on August 15,2074,I served the annexed:
EXPERT DEFICIENCY LETTER.
upon the following plaintiff and co-defendants by depositing a copy of same, enclosed in a first
class postpaid properly addressed wrapper, in a post office/official depository under the
exclusive care and custody of the United States Postal Service, within the State of New York,
directed to plaintiff and co-defendants at the addresses set forth below, being the address
designated by plaintiff and co-defendants for that purpose:

Nathaniel B. Smith, Esq.
I 1 1 Broadway - Suite 1305
New York, New York 10006
Gregory John Radomisli
MRRrm CleeRwRren & BBr.l LLP
Attorneys þr Jamaica Hospital Medical
Center
220 East 42nd Street l3th Floor
New York, NY 10017

Brian Lee
IVONE, DEVINE & JENSEN,LLP
Altorneys for Dr. Isak Isakov
2001 Marcus Avenue, Suite Nl00
Lake Success, New York 11042

Bruce M. Brady
CALLAN, KOSTER, BRADY &

BRENNAN, LLP
Attorneys for Lillian Aldana- Bernier
I Whitehall Street
New York, New York 10004

Walter A, Kretz, Jr.
SEIFF KRETZ & ABERCROMBIE
Attorney for Defendant Mauriello
444 Madison Avenue, 30th Floor
New York, NY 10022

Dated: New York, New York
August 75,2014

Publicker Mettham (SPl 005)
Assistant Corporation Counsel
Special Federal Litigation Division