Schoolcraft v. The City Of New York et al

Filing 273

TRANSCRIPT of Proceedings re: conference held on 9/17/2014 before Judge Robert W. Sweet. Court Reporter/Transcriber: Rose Prater, [phone]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/31/2014. Redacted Transcript Deadline set for 11/10/2014. Release of Transcript Restriction set for 1/8/2015.(McGuirk, Kelly)

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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 AL.,

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10 CV 6005 (RWS)

Defendants.
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New York, N.Y.
September 17, 2014
12:01 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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LAW OFFICE OF NATHANIEL B. SMITH
Attorney for Plaintiff
BY: NATHANIEL B. SMITH
AND
LAW OFFICE OF JOHN DAVID LENOIR
BY: JOHN DAVID LENOIR

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NEW YORK CITY LAW DEPARTMENT
Attorneys for Defendants City of New York, NYCPD and
individual officers
BY: SUZANNA PUBLICKER METTHAM
RYAN GLENN SHAFFER

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SEIFF KRETZ & ABERCROMBIE
Attorneys for Defendant Deputy Inspector Steven Mauriello
BY: WALTER A. KRETZ, JR.

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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APPEARANCES (CONT'D)
MARTIN CLEARWATER & BELL, LLP
Attorneys for Defendant Jamaica Hospital Medical Center
BY: GREGORY J. RADOMISLI

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IVONE DEVINE AND JENSEN, LLP
Attorneys for Defendant Dr. Isak Isakov
BY: BRIAN E. LEE

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CALLAN, KOSTER, BRADY & BRENNAN, LLP
Attorneys for Defendant Dr. Lillian Aldana-Bernier
BY: MATTHEW J. KOSTER

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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(In open court)

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(Case called)

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MS. METTHAM:

Good afternoon, your Honor.

We're here

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for a motion to compel expert discovery from plaintiff's

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expert.

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easiest part or the more difficult one.

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I don't know if you would like to start with the

THE COURT:

That's hard.

Well, do whatever you think

is the most persuasive.

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MS. METTHAM:

Well, then I won't start with the most

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difficult one for your Honor.

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identified two police practices experts, Eli Silverman and Joe

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Eterno, and he's presented an expert report for these

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individuals.

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that expert report, the experts cite to a large amount of data,

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information and research which has not been produced by

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plaintiff during discovery or by the experts as part of their

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expert report or in a publicly available format in their list

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of references that the defendants can access.

Your Honor, plaintiff has

The expert report is very lengthy, and within

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This data is extremely integral to the City defendants

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and Defendant Mauriello's ability to challenge these experts on

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issues of CompStat pressure, on issues of police management

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practices, and therefore.

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He has refused, saying that since, for example, their survey on

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which some of this data is based was done unrelated to this

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case, it shouldn't have to be produced.

We've asked plaintiff to produce it.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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So what we're seeking from that, those two surveys

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done by Professor Silverman and Eterno from 2008 and 2012 which

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they've cited and used in their expert report, one, is raw

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data.

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retired police officers.

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those surveys.

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So they received surveys from hundreds and thousands of
We would like the actual data from

Now, the surveys are anonymous.

We're not seeking the

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names of the individuals or identifying information about them,

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but we are seeking the results from the raw data of the surveys

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they've completed so that we can compare answers.

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the year in which the individual retired, to the amount of

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pressure they claim to have been subjected to in an effort

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actually to limit this to the time period relevant to this

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case, since the individuals surveyed by Silverman and Eterno

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have ranged from retirees in the first half of the 20th century

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to as recent as the last two years.

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For example,

We're also seeking narrative responses, as both

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surveys included narrative sections which allowed the

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respondents to expound personally about their feelings, which

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the authors, Professor Silverman and Eterno, said they relied

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on in coming to their opinions.

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narrative responses to understand what data was relied on by

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the experts.

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So we'd like to see the full

Moving away from the survey, the experts also relied
on what they called hospital data from 2006 from the Health and
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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Hospital Corporation, but in the references section, it's just

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a link to the Health and Hospitals Corporations' website.

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There's no link to any specific data, research, survey on which

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they relied.

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We have no idea what they're referencing.

They've also mentioned a number of nonpublic sources

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such as PBA statements which were not made public.

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these statements, you need a membership in the Patrolman's

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Benevolent Association.

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which they've relied and cited to in their report be provided

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To access

We've asked that these documents on

to defendants.
And, additionally, they've included information about

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other whistleblowers that are not a part of the Schoolcraft

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matter, a Sergeant Borrelli and an Officer Polanco.

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cited to recordings and documents on which the experts have

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relied that have never been produced to defendants in discovery

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in this case and have not been produced afterwards.

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know, we're seeking what we believe rule 26 provides, which is

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the data and information on which the experts relied in coming

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to the conclusions in their report.

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THE COURT:

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MS. METTHAM:

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So, you

Anything else?
That is the first issue.

Would you like

me to address the other ones as well?

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THE COURT:

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MS. METTHAM:

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They've

Sure.
Sure.

The next issue, your Honor, is

plaintiffs have -- or plaintiff has limited us; so we've asked
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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for a certain of the experts to have a day and a half, and

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other ones two days of deposition testimony.

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to produce them each for one day.

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that all five different sets of defendants' counsel can depose

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them within the seven hours and then, if required, later could

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move the Court for additional time after the first deposition.

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He's only agreed

Plaintiff's position was

Given that there are five different sets of defendants

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who are all defending against claims made in these expert

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reports, we require additional time.

We know this in advance.

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We have spoken among ourselves.

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duplicative in any fashion in the questioning of these experts,

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but I don't think it's reasonable for expert reports that are

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dozens of pages long to have only seven hours of deposition

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testimony by five different sets of defendants with very

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different liabilities.

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THE COURT:

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MS. METTHAM:

It is not our intention to be

What do you want, a day and a half?
For Dr. Lubit, I believe it's two days.

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For the one of the medical experts and for Professors Silverman

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and Eterno, a day and a half each.

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THE COURT:

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MS. METTHAM:

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THE COURT:

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Does the city have any experts?
At this time, we do not, your Honor.

At this time, do you still have time to

designate?
MS. METTHAM:
tomorrow.

Well, your Honor, we do still have

The problem is, without the survey data, we don't
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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know if we need an expert to analyze the data for us and what

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format.

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THE COURT:

All right.

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MS. METTHAM:

Thank you.

However, I am aware that the other

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defendants have hired experts and do intend to provide expert

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reports.

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THE COURT:

Any agreement on those, the time for

those?

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MS. METTHAM:

On the time for the depositions of

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those?

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deposition of defendants' experts.

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The Court had provided previously a time line for the

THE COURT:

But I'm talking about the duration, any

agreement?
MS. METTHAM:

No, there have not been yet, your Honor.

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However, we believe that would be a bit of an easier matter as,

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you know, we haven't seen the expert reports, they are not due,

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at the very earliest until tomorrow.

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THE COURT:

Okay.

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MS. METTHAM:

But, you know, it would mostly be

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rebutting plaintiff's expert, not an indictment of all other

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defendants.

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THE COURT:

All right.

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MS. METTHAM:

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THE COURT:

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MS. METTHAM:

I hope.

Anything else?
Yes, your Honor.

On a list of cases on

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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which -- in which the plaintiff's experts have given testimony

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in the last four years, as required by rule 26, plaintiff

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agreed in his opposition to provide such a list.

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that your Honor order him to do so by a date certain, since the

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depositions are beginning a week from today.

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We just ask

Additionally is the issue of the expert's

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compensation.

Plaintiff has provided us with generally, you

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know, these experts charge X amount per day and X amount per

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hour, but he has not provided us with the amounts that they

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were actually compensated for the study.

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that, according to rule 26, a party must provide the actual

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compensation paid for the study.

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Defendants believe

Plaintiff has not done so.

Additionally on the compensation angle, plaintiff has

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demanded that the defendant pay, No. 1, in advance for the

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expert's deposition time and also that defendants pay all of

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the expenses for the travel and travel time of his experts, who

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are apparently coming from out of state and from hours away.

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Defendants challenge that.

There's case law from the

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Southern District stating that plaintiff can find an expert

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within the district without having to burden the defendants

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with the cost of that expense.

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is improper as it could be used for preparation time, which we

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are already paying his experts for.

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Additionally, that travel time

Finally, I had actually brought up the issue with
plaintiff over a month ago that the City cannot pay in advance
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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for these depositions without certain information.

We need

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invoices, we need tax identification numbers, we need receipts,

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you know, being we have to go through these certain processes

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which take two to three weeks, at least, which I informed

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plaintiff of.

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even if we were to agree to pay in advance, to do so.

He hasn't yet provided us with the information,

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So we ask that your Honor allow defendants to pay the

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experts after the deposition for the actual hours expended and

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only for preparation time and actual deposition time.

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Thank

you, your Honor.

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THE COURT:

Anything from the plaintiff?

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MR. SMITH:

Yes, your Honor.

On the last issue about

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compensating the plaintiff's experts, that's a new issue.

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wasn't in the letter.

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the case authority that I think supports their position on

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that.

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up since it was not in the letters.

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It

I can address it now, but I don't have

So I think it's a little bit out of school to bring that

THE COURT:

Well, the payment after, rather than

before, that seems simple.

Doesn't it?

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MR. SMITH:

Yes.

It's a question of how much.

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THE COURT:

Well, how much.

Doesn't it seem clear

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that the rates have to be stated and the past compensation has

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to be stated?

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MR. SMITH:

That has been done, and the approximate --

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THE COURT:

I didn't understand that from what the

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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City just told me.

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MR. SMITH:

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deposition time and prep --

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THE COURT:

No, no.

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MR. SMITH:

It's the travel time that I'm hearing that

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No, they said they're willing to pay for

they're saying --

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THE COURT:

The travel time is agreed it's too much.

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All right.

Okay.

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So but the City also wants the

amounts that they've been paid in the past for the study.

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MR. SMITH:

And I've provided that information.

I

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said this is how much they get paid, this is how much they're

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charging me on an hourly basis either for the time that they're

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doing for me, or one of the doctors says I charge for testimony

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deposition or trial on a half day or full day.

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THE COURT:

I'm hearing a disconnect.

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MS. METTHAM:

Yes, ma'am?

Your Honor, he has provided the general

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rates.

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him for the study.

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actually compensated the experts.

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He has not actually told us how much plaintiff has paid

MR. SMITH:

That's what we're seeking, is what he's

Well, all right.

Fine.

I don't think

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they're entitled to that information, but they can certainly

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ask the expert in a deposition how much have you billed, how

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much have you been paid, but we're getting a little bit out of

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school here.

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for all of this information from the experts, which I'd like to

The rules don't authorize any of their requests

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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get to the heart of the motion before us today.

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THE COURT:

Yes, well, okay.

But I don't see any

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reason not to give them the amounts.

Although, obviously,

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that's something that can be covered in the deposition.

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MR. SMITH:

It seems to me that that's --

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THE COURT:

Yes.

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MR. SMITH:

I mean, that's the right way to handle it.

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THE COURT:

As far as all the exhibits, the data,

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we'll just say data.

Why not?

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MR. SMITH:

Okay.

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THE COURT:

Raw data, for example, on the surveys.

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MR. SMITH:

Right.

I'd be happy to address that.

The

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federal rules clearly provide what an expert is required to

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disclose in an expert report, and what they're required to turn

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over is information that they relied upon in preparing the

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report.

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And notwithstanding what the City has said, we have

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done that.

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they relied upon in generating their reports.

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both of them wrote a book in 2012, Crime Numbers Game.

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and Mr. Silverman wrote an earlier book in 1994 about CompStat

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and about how CompStat has changed over the years from actually

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what was a very good idea into an idea that created

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inappropriate incentives.

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We have provided them with the information that
So, for example,
It's --

Anyhow, the rules don't authorize the defendants to
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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request and do not obligate the experts to turn over all of the

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information that they generated over the many years that

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they've been studying this area.

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studied in 2008, and then with a follow up in 2009, was a

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survey that they sent out to a lot of retired captains and

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above.

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One of the areas that they

They reported on those surveys.

They reported on the

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survey -- on one of them in this book.

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and the answers are in a summary, which I sent along with my

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letter.

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In fact, the questions

many, many years.

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So they've been working on police CompStat issues for

What the City wants to do is say, well, you rely on

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your findings from 2008; so we're entitled to all of the data

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that was -- that was used and created in order to reach that

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conclusion.

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The point -- my point is that they didn't, in

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preparing these reports, rely on any of that raw data or

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anything else.

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familiar with and that they contributed to, they relied on many

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things.

In the academic literature that they are

And they cited in an appendix many of these --

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THE COURT:

But their report here.

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MR. SMITH:

Their report here refers to the results of

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the 2008 and the 2012 survey and, I mean, there's --

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THE COURT:

Well, so they should provide the 2008

survey.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MR. SMITH:

That has already been -- that's in their

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book.

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wants to do is have them go get file cabinets from almost a

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decade ago and pull out all of that, and challenge it.

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rules don't authorize that.

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stuff that they looked at in generating their report.

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The survey's in their book and the data -- what the City

And the

They're required to turn over the

If this is correct, then every expert who ever relies

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on anything that they ever said in the past, has to turn over

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all of the research that they ever conducted in order to rely

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on a piece of work that they did in the past.

That's why I say

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in order to resolve this motion fairly, you have to look at

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what the rule requires.

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discovery about everything.

The rule doesn't require full-blown

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The experts are not parties in a civil litigation.

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They are providing information about what they looked at in

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order to generate their report.

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in the Floyd case, they already took Silverman's deposition on

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the 2008 survey, and they got the information that Judge

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Scheindlin in that case gave them.

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Silverman testified in the Floyd case, and Judge Scheindlin

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already found that the surveys show that there was CompStat

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pressure being generated on supervisors in the periods under

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discussion.

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The irony about this is that

And Eli Silverman, Dr. Eli

So they could rely on their prior writings.

They

could also rely on Judge Scheindlin's findings in the Floyd
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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case, a finding after a bench trial on a fact.

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explicit authorization in the federal rules, it's really unfair

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to these experts to require them to open up all of their file

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cabinets for all of their research if they --

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THE COURT:

So without any

What was Judge Scheindlin's determination

with respect to what the experts had to supply?

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MS. METTHAM:

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MR. SMITH:

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MS. METTHAM:

Your Honor, if I may?

I'll answer that question.
To begin with, your Honor, plaintiff

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misstated to the Court on multiple occasions.

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was not an expert in the Floyd trial.

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that matter.

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fact witness that was identified very belatedly.

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Scheindlin allowed only limited discovery, both limited

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discovery and deposition testimony.

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I was trial counsel in

I'm very familiar with it.

MR. SMITH:

Eli Silverman

Eli Silverman was a
Judge

Your Honor, I object to the interruption.

I really do.

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THE COURT:

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MS. METTHAM:

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THE COURT:

Okay.

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MR. SMITH:

Judge Scheindlin, in her opinion and order

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Well, let's let the plaintiff finish.
Okay.
So what did Scheindlin do?

resolving the Floyd case, this is -THE COURT:

I don't care about the substance.

I'm

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only interested in what did she do on the issue of the expert

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report and the data that underlay it.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MR. SMITH:

Oh, what she did was she said you can take

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Silverman's deposition, you can have the surveys, not all the

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underlying data.

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Silverman testified at the Floyd trial about the subject, and

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the Court found that --

And they took his deposition and then

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THE COURT:

Okay.

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MR. SMITH:

-- that there was this --

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THE COURT:

In other words, the survey, the data

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All right.

underlying the surveys is appropriate to be turned over.
MR. SMITH:

She did not order the underlying data to

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be turned over.

She ordered the surveys, which are the

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questions.

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questionnaire, and they mailed them out to retired guys, and

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then they got a whole bunch of responses.

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all that data and they compiled it into summaries.

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summaries are in the report.

What happened was they had a 20-question

And then they took
And the

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And the actual raw data, they didn't have to produce.

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They told me that -- you know, they don't want to have to open

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up their entire files to the City or to anybody else about

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their research.

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this is their --

It's a never-ending problem for them.

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THE COURT:

Anything else you want to tell me?

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MR. SMITH:

Yes.

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they're asking for.

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these surveys.

I mean,

It's not just the raw data that

It's electronic databases used to compile

They're asking for their notes on those
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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surveys.

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report for this case.

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researchers or professors who aided them in their prior survey

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research, drafts of articles and surveys used by them in the

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past.

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THE COURT:

They're asking for a list of other

But none of this has been referred to in

the report?

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They didn't rely on these notes in creating the

MR. SMITH:

No, none of it.

The raw data wasn't

referred to in the report either.

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THE COURT:

No, I know, but the survey was in the

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MR. SMITH:

The conclusions from the surveys were.

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THE COURT:

Yes.

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MR. SMITH:

That's true.

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report.

So I think I've covered that

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first issue.

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rule 26, it does not open up the experts to this kind of

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full-blown discovery.

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I would just say, you know, Judge, if you look at

The rules are very clear.

If you sit and you read it, it says that they've got

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to turn over what they relied on.

And I told the experts that

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if you want to protect yourself and you don't want to open

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yourself up to everything, don't rely on anything, and then you

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won't have to turn it over.

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actually successful in this motion, they're going to -- they've

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asked me to reconsider even using the surveys because it's

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unfair to them.

And so now, if the City is

But anyhow, I'll cross that bridge when I have

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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to.

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Moving on to the seven-hour issue versus a day and a

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half to two days.

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technicalities, but the federal rules say presumptively seven

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hours.

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than seven, they have to make a record, they have to show how

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they need more.

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You know, I hate to be a stickler for

And if the defendant or plaintiff thinks they need more

All we hear is a lot of conclusionary statements about
how, well, there's five defendants and, of course, we need a

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day and a half or two days.

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showing here that they actually require this.

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myself to a day for some of the principal defendants in this

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case.

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is a huge fact witness in this case.

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But there's no -- there's been no
I had to limit

Mauriello was only a day and not a nickel more, and this

These experts have rendered detailed reports

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expressing their opinions.

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provided prior testimony.

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capable, I think, of focusing in on what they need, and if they

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can show that they need more, the rules require that they do

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that.

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they need more.

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They've provided resumes.

They've

These defendants are perfectly

And I respectfully submit to you they haven't shown that
They just say that they need more.

I think that covers it.

I'll address this issue about

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the time list and the amount of the payments now or I'll

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address it in writing.

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propositions that these experts are entitled to one-half of

I did some research to support the

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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their travel time.

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Island, the Upper West Side, West Chester and Long Island; so

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we're not talking about the other end of the country or the

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world.

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They're coming from Providence, Rhode

In any event, I've asked for one-half of their hourly

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rate, which is consistent with my understanding of the case law

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in this circuit.

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to get the money upfront because they don't want to have to

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chase after the defendants to get paid after the depositions.

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I agree with your Honor, it's easier to do it after, but it's

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their time.

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want, I'll submit the authority that I have for the position

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I've taken.

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do so.

And I also ask, because the experts asked me,

They ought to be paid for their time.

I don't think it's necessary, but I'd be happy to

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THE COURT:

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MS. METTHAM:

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THE COURT:

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MS. METTHAM:

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THE COURT:

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Okay.

Sure.

all the time.

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THE COURT:

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Your Honor, first address --

This is something that the City must face

MS. METTHAM:

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Thank you.

Excuse the interruption.

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And if you

Which part?

This business about bills and so on and

advance payments.
MS. METTHAM:

And typically we pay the experts after

the expert's deposition has been taken.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

Let me put it to you differently.

2

you ever advanced the money?

3

MS. METTHAM:

4

THE COURT:

5

MS. METTHAM:

Have

I have.

Okay.

Good.

But when I've paid the expert in

6

advance, I was given an invoice by the plaintiff about a month

7

prior with all of the information required.

8

straightforward issue.

9

there the day before, but --

10

THE COURT:

11

MS. METTHAM:

12

To address the issue of Scheindlin, again, I must

I paid him.

It was a

The check actually got

Okay.
-- typically we pay after.

13

stress, your Honor, that Professor Silverman was not an expert

14

in that case.

15

decisions were very much motivated by the fact that he was not

16

an expert in that case.

17

And the reason that's important is that her

So plaintiff is also mistaken that we did receive

18

underlying data from the surveys.

19

narrative data from the surveys

20

THE COURT:

21

MS. METTHAM:

We also received the full

I'm sorry?
We did receive narrative data from the

22

surveys in Floyd.

So Professor Silverman and Eterno had

23

narrative responses to certain questions in their surveys in

24

2008 and 2012.

25

certain of those narrative responses from the underlying data.

Judge Scheindlin ordered them to produce

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

I'm not getting word.

2

MS. METTHAM:

Narrative, summaries?

The area where

3

the respondent to the survey was able to expound without

4

checking a multiple-choice question.

5

actual survey, what the respondent's typed or hand wrote,

6

which --

7

THE COURT:

8

MS. METTHAM:

9

THE COURT:

Was produced?
It was produced.

And it will be here.

10

MS. METTHAM:

11

THE COURT:

12

MS. METTHAM:

13

THE COURT:

14

So the raw data from the

I would hope so, your Honor.

Yes, it will be here.

Okay?

Yes, your Honor.

And that's consistent with what Judge

Scheindlin did?

15

MS. METTHAM:

16

THE COURT:

17

MS. METTHAM:

18

THE COURT:

19

MS. METTHAM:

Yes, she did order the narrative --

Okay.
-- information.

Okay.
In terms of the other data, the reason

20

that there is a difference here in terms of the actual survey

21

responses is that in the Floyd matter, because he wasn't an

22

expert, and Professor Silverman was very limited in what he was

23

allowed to testify on.

24

the pressures that they believed came from stop, question and

25

frisk information.

And he was only allowed to testify on

That was only one of about 24 questions in

SOUTHERN DISTRICT REPORTERS, P.C.
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the survey.

2

testimony was limited to stop, question and frisk pressures.

3

So all of his discovery, his deposition, his trial

In this matter, the plaintiff's experts have used the

4

survey data and responses in a much broader way.

5

talking about CompStat data generally on stop, question, frisk,

6

on summonses, on arrests.

7

CompStat to -- the impact on constitutional rights.

8
9

They're

They talk about the pressure of

And the issue, your Honor, here is with them as
experts, we need to probe their survey so that we can make an

10

appropriate Daubert and Kumho Tire motion to exclude these

11

experts based on how they've conducted the survey on the age,

12

the numbers of the retirees, when they retired, what kind of

13

pressure.

14

For example, your Honor, plaintiff's experts -- and

15

this is Exhibit E to my September 4th motion of their report

16

and starting on Page 16 are the survey findings.

17

survey findings the experts have lumped responses into these

18

subjective categories of low, medium and high and found that

19

retirees who retired before 1995 felt one way, from 1995 to

20

2001 felt another, and 2002 until 2012 felt a different way.

21

And in the

The reason we need the underlying data is that we

22

don't believe that these categories are appropriate.

23

believe that cutting it off before 1995 -- we think that if you

24

changed that year, so if the respondent said he retired in

25

2000, that we want to see what retirees in that year said.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

We don't

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Instead of saying plaintiff's experts' category of low, we want

2

to know if they said a one, a two or a three in response.

3

We just simply need more qualitatively data to be able

4

to analyze their survey and to challenge their survey

5

responses.

6

not relying on this data in their report, but again, I would

7

direct the Court, respectfully, to the report starting on

8

Page 14, where they spend a dozen pages talking about the 2008,

9

2012 expert -- I mean surveys, going through the survey

And plaintiff here has said that his experts are

10

findings and linking it to this case.

So instead of simply

11

saying we've done a survey in the past and this has kind of

12

changed our opinion, they've heavily relied on it in this

13

matter.

14

And in terms of the other data on which they've

15

relied, No. 1, I would direct the Court to Federal Civil

16

Procedure 262(b)(2), which requires an expert to include the

17

facts or data considered by the witness in forming their

18

opinions.

19

rules simply don't require an expert to provide this

20

information, it's pretty clearly written that if an expert

21

relies on data or information, they must include that in their

22

expert report.

23

So contrary to plaintiff's opinion that the federal

And while the survey is one part, plaintiff's experts

24

also spend a large amount of time talking qualitatively about

25

CompStat, mentioning non-NYPD data sources which aren't
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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identified anywhere in the footnote, in the references.

2

make their own opinions about evidence that NYPD leadership

3

altered and misused CompStat, that the CompStat crime reduction

4

system has been emulated in other cities.

5

They

They're relying on a lot of information which they

6

haven't provided data or information on, and we're seeking to

7

get that data so that we can challenge this report

8

appropriately, your Honor.

9

MR. SMITH:

Can I respond to that, your Honor?

10

THE COURT:

I think we will have what we'll call the

11

Scheindlin rule for the 2008, 2012 surveys.

12

fact or literature will be produced.

13

day, with the understanding that if more is needed, an

14

application will be made, and there will be no additional

15

travel time or anything of that kind.

16

with that is we're just putting off that problem, but, okay.

17

Any identified

The depositions will be a

You know, the trouble

Well, let's back up a little bit.

Okay.

I guess what

18

we should do is you'll tell me -- it's totally predictable, but

19

you'll tell me when these depositions are scheduled, and we

20

will have a conference at the close of the day to determine

21

whether or not there should be additional.

22

I'm pretty sure there will be, but okay, we'll see.

23

MS. METTHAM:

Now, quite frankly,

Your Honor, if I may interrupt to ask a

24

question about how that would work in reality in that with five

25

separate defendants, you know, if we're all supposed to split
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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the first seven hours, you know, if one defendant --

2

THE COURT:

You can do whatever you want to do.

With

3

such an array of such skilled and experienced lawyers, I

4

wouldn't dare contemplate how you should split up your time or

5

who does what with which and to whom.

6

forward and say this is an area that I want to examine on and

7

it hasn't been covered, well, we'll hear it.

8
9

MS. METTHAM:

And if somebody can come

And, your Honor, might I just ask that

if a defendant were to finish questioning to allow time for

10

another defendant, that they would not, you know, give up any

11

rights to additional questioning on the second date, if the

12

Court were to grant such a motion?

13

THE COURT:

Well, okay.

That's interesting.

The

14

plaintiffs will provide an invoice for one-half the travel

15

time.

16

missed, anything?

17

You know, really.

MR. SMITH:

Well, all right.

And what have I

There's one thing that I need to raise

18

now, which is the City is saying tomorrow their expert reports

19

are due and they're not going to provide any, and I'm concerned

20

that this is going to scuttle the schedule that we already

21

have.

22
23

THE COURT:

Well, listen, enough is enough.

Thank you all.

24

MR. KOSTER:

Your Honor?

25

THE COURT:

I thought so.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Okay.

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MS. METTHAM:

2

want a clarification.

3

provide identified facts or literature, to be more specific,

4

you know, is plaintiff required to provide the narratives?

5

he required to provide the survey responses?

6

THE COURT:

7

MS. METTHAM:

8
9
10

Just real quick, your Honor.

I just

When you told plaintiff that he must

Yes.

Is

And that was done in the Scheindlin.

Not all of the survey responses were

provided in Floyd.
THE COURT:

What was the distinction?

MS. METTHAM:

So the narrative responses, the

11

long-form written responses were provided but not all of the

12

multiple choice underlying data was provided.

13

Honor, the multiple choice is what we believe is relevant so

14

that we can look into the actual years that these

15

individuals --

16
17

THE COURT:

All right.

You can have the multiple

choice and the narratives.

18

MS. METTHAM:

19

MR. RADOMISLI:

20

And, again, your

Thank you, your Honor.
Your Honor, I don't think your Honor

ruled on whether we have to pay in advance or not.

21

THE COURT:

Say it again?

22

MR. RADOMISLI:

I'm not sure whether your Honor ruled

23

on whether we have to pay in advance, or we can see how much

24

time is actually spent.

25

THE COURT:

Well, the transportation in advance.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

And

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I would think that you can't pay in advance when you don't know

2

how long it's going to go; so....

3

MR. RADOMISLI:

4

THE COURT:

5

MR. KOSTER:

Thank you, your Honor.

Yes.
Your Honor, regarding the deadline to

6

respond to plaintiff's expert discovery, based on your last

7

order from plaintiff's motion to compel, there are still

8

several depositions that the parties have to complete,

9

including medical defendants.

10

I represent Dr. Aldana-Bernier.

In the interest of not having to provide potential

11

multiple expert reports, whether any reports will be changed or

12

altered based on further deposition testimony, I'd ask for an

13

extension of time for the defendants to respond.

14

willing -- and I think we'll all be willing to grant the

15

plaintiff the courtesy that if he needs to amend his expert

16

report based on the deposition testimony that will be

17

forthcoming --

18

THE COURT:

19

MR. KOSTER:

20

MR. SMITH:

And I'm

That seems to make sense.
-- that he's allowed to do so.
No, it doesn't make sense.

We have a

21

schedule.

I'm trying to get this case ready for trial, your

22

Honor.

23

Last month, in August, I worked very hard with all of my

24

experts to get expert reports served pursuant to the scheduling

25

order, and now I'm being told that we're not going to have what

All the defendants' expert reports are due tomorrow.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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we're supposed to have, or because you dropped your pencil,

2

we're not going to give it to you and, you know --

3

THE COURT:

Wait a minute.

4

MR. SMITH:

Well --

5

THE COURT:

Factually, are the experts, all the expert

6
7

depositions scheduled?
MR. SMITH:

Mine are.

They haven't even designated

8

who their experts are yet, and now I'm hearing that, although

9

they were supposed to do it tomorrow --

10

THE COURT:

They will do it tomorrow.

11

MR. SMITH:

-- it's not going to happen.

12

THE COURT:

They will do it tomorrow.

13

MR. KOSTER:

Your Honor, just in that sense, I believe

14

Mr. Smith has misrepresented certain things to the Court in

15

which he was granted multiple extensions of time to file his

16

expert reports.

17

behalf of the defendants, I don't think is unreasonable.

18

This simple request for a short extension on

THE COURT:

Well, designate.

If you have to change

19

the designation or make another determination, you can try to

20

do that later based on subsequent events.

21

successful it will be.

22

MR. KOSTER:

23

MR. SHAFFER:

I don't know how

Thank you, your Honor.
Your Honor, Ryan Shaffer for the City

24

defendants.

Just to give your Honor an idea of something that

25

is coming your way, so to speak.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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Last Friday Mr. Smith identified an additional 17,

2

perhaps more, fact witnesses despite the fact that he was

3

ordered to identify those witnesses back in February.

4

defendants do intend to put it in a letter to your Honor

5

addressing this issue, but since the issue of scheduling is

6

sort of on the table, I wanted to let your Honor know that that

7

is coming in your direction.

8

THE COURT:

9
10

The City

And I take it you're resisting the

additional fact witnesses?
MR. SHAFFER:

Right, because we're seven months past

11

the deadline to have disclosed those witnesses and two months

12

past the deadline for all the fact discovery to be completed.

13

MR. SMITH:

What I did, your Honor, is as I've

14

continued my investigation into the facts of this case -- Now,

15

look, this is bushwhacking.

16

THE COURT:

Of course.

17

MR. SMITH:

Of course it is.

18

THE COURT:

What, is that unusual?

19

MR. SMITH:

No.

20

provide a fulsome response.

21

THE COURT:

22
23

So then allow me the opportunity to

No, no.

I understand, but I'm wondering,

tell me about the schedule, which I'm sort of lost on.
MR. SMITH:

I'd be happy to.

It's right here.

I can

24

hand it up to you.

The schedule -- the last schedule was

25

July 18, and it provided firm dates for fact discovery, expert
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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discovery and motions.

2

depositions, your Honor, in a letter, an endorsed order moved

3

back all of the dates set forth in this schedule one week.

4

That was on consent.

5

Based on scheduling problems with the

And right now, we're scheduled to have all dispositive

6

motions returnable in this courtroom November 5, and we're

7

supposed to have expert disclosure completed by October 16th;

8

so....

9
10
11

THE COURT:

Now, fact witnesses, when they were

supposed to be -- that was supposed to be completed by -MR. SMITH:

There was no deadline for identifying fact

12

witnesses.

13

obligation to supplement your disclosures.

14

that I'm aware of that the Court imposed on me was we -- I'm

15

sorry, we're going to have to step back.

16

My understanding is that you have an ongoing
The only deadline

Five or six months ago I learned that there were a

17

large number of police officers who responded to a website

18

called Schoolcraft For Justice, and I obtained from prior

19

counsel a stack of e-mails and correspondence from many, many

20

police officers responding --

21

THE COURT:

Okay.

22

MR. SMITH:

-- to basically B2s, and I was concerned

23

about confidentiality.

And your Honor said if you want to use

24

any of these police officers, you have to identify them out of

25

this stack.

And I did I identified one Lieutenant, whose name
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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was Joe Ferraro.

2

THE COURT:

Okay.

3

MR. SMITH:

And because he, for reasons -- I

4

identified him out of that stack and the City took his

5

deposition.

6

for conduct that was going on at the eight-one.

He also tape recorded one of the other defendants

7

So in the context of discovery, I've also -- informal

8

discovery, I've discovered that there are many police officers

9

that have brought claims for retaliation against the Police

10

Department for similar kinds of activities, and I served

11

document demands and interrogatories on the City probably in

12

February of this year saying give me information about any

13

claims of retaliation.

14

They objected.

Your Honor, unfortunately, from my

15

perspective, agreed, and so they were not required to turn over

16

any of that information.

17

supplement, recently, Schoolcraft's financial and emotional

18

distress damages, I also went through and identified all of

19

those police officers who I had made document requests for in

20

February as people who made have knowledge about -- that's

21

relevant to this case, and that's what happened.

22

When your Honor told me to

And I think I have a continuing obligation to do that.

23

If I had more information about those officers, I would have

24

provided that, but the only information I was able to get was

25

from, you know, a Daily news article or reported decision or
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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something like that.

And so that is, from my perspective as

2

the counsel for the plaintiff, what happened.

3

THE COURT:

But --

4

MR. SMITH:

So, you know, I mean, the NYPD has the

5

names of these people who I believe may have information.

6

don't -- I mean, I don't even have sufficient data right now to

7

send out an investigator for all of them, but I thought, given

8

the fact that I was told to supplement my discovery, and given

9

the fact that I wanted to make sure that I was taking this

10

I

position that these people may have information --

11

THE COURT:

Okay.

I think we'll pass it now, and

12

we'll have a further discussion.

13

sounds to me as if maybe I made a mistake on the --

14

MR. SMITH:

But let me ask the City.

It

There were about twelve, roughly around

15

twelve police officers who, according to reported decisions or

16

newspaper articles, made claims that they were retaliated

17

against because they objected to --

18
19
20

THE COURT:

When you say made claims, I mean, what did

MR. SMITH:

Well, bring a lawsuit in Federal Court or

they do?

21

defended a -- this came up in a few contexts this way.

22

were actually disciplined for -- I don't remember the name of

23

this officer, but there was one report/decision where an

24

officer was given charges because he issued a bogus summons,

25

and he was -- in an administrative proceeding he was charged
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

They

32
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with doing something improper.

2
3

THE COURT:

I'm trying to figure out what it is and

how did you identify what you wanted the City to give you?

4

MR. SMITH:

Well, in this officer, whose name I don't

5

remember, the decision that I'm referring to is an

6

administrative decision which discussed how the officer's

7

defense to the charge that he issued a summons improperly, this

8

was in Staten Island, was pressure on him on a regular basis to

9

issue summonses to satisfy a quota.

10

And so his defense to,

yeah, I made up a bogus summons was, you made me do it.

11

And so I asked -- I identified him, and I apologize I

12

don't remember his name, but there's a list of like 15, 12,

13

something like that, of these officers who have made myriad

14

types of claims alleging that they were being punished

15

because --

16
17

THE COURT:

I'm trying to understand.

You said they

made claims.

18

MR. SMITH:

Yes.

19

THE COURT:

What is it that they've made claims, for

20

what, against the City?

21

MR. SMITH:

I mean, what would the City know?

I don't know.

I mean, sitting here today,

22

I don't have my file.

23

feel I won't be able to answer your questions more accurately.

24
25

THE COURT:

I don't have my information.

Okay.

I really

We'll pass all of that and wait for

the -SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MR. SMITH:

Okay.

2

THE COURT:

We'll have to have a conference at

3

whatever time you all think is feasible with respect to the

4

schedule.

Okay.

Thank you, all.

5

MR. SMITH:

Thank you.

6

MS. METTHAM:

7

(Adjourned)

Thank you, your Honor.

8
9
10
11
12
13
14
15
16
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18
19
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22
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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]