Schoolcraft v. The City Of New York et al

Filing 281

LETTER addressed to Judge Robert W. Sweet from Nathaniel B. Smith dated 10/7/2014 re: Conference request. (ajs)

LAW OFFICE OF

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NATHANIEL

SMITH

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Honorable Robert R. Sweet
United States District Court Judge
Southern District of New York
500 Pearl Street
New York, New York 1007

Schoolcraft v. The City ofNew York, et al.,
JO-cv-6005 (RWS)(DCF)
Dear Judge Sweet:
On behalf of the plaintiff, I am writing to the Court to request a conference
on three outstanding discovery issues that have not been adequately addressed by
the City Defendants in accordance with the Court's August 29, 2014 Order (Dkt. #
268) and the Court's September 17, 2014 open-court Order. The issues related to
the following matters: (I) the City Defendants' failure to provide expert
disclosures; (2) the inadequacy of the Comp Stat notes recently produced; and (3)
an appeal file and an early intervention filed that the City Defendants now claim
does not exist.
These matter are addressed in tum below.

I. The City Defendants' Expert Disclosures.
Pursuant to the existing Scheduling Order, all defendants were required to
provide expert reports by September 18, 2014. 1 Pursuant to the Scheduling Order,
1

The governing Scheduling Order, dated June 18, 2014, provides that defendants' expert reports

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LAW OFFICE OF

NATHANIEL

B.

SMITH

the plaintiff produced on August 11, 2014, expert reports by the plaintiff's police
practices experts as well as expert reports by the plaintiff's emergency room and
psychiatric experts. Since then, the parties have commenced discovery on
plaintiff's experts.
On September 17, 2014, the parties appeared before the Court for a
conference on the plaintiff's expert discovery and the scope of the City
Defendants' requests for survey data from the plaintiff's police practices experts.
During the course of the conference, the defendants requested that the Court extend
the deadline for defendants' expert reports. I objected, noting that the expert
reports were due the following day, September 18, 2014, and no proper grounds
for any extension had been offered. The Court squarely denied the request for an
extension and stated that in the event that a report needed to be supplemented that
issue could be addressed at a later date but that the reports had to served in
accordance with the existing schedule.
The City Defendants, however, have failed to comply with the Court's
Scheduling Order, even in the face of a clear direction by the Court on September
17, 2014 to produce their reports, if any. All the other defendants, on the other
hand, have provided their expert disclosures. Accordingly, the Court should enter
an order precluding the City from submitting any expert evidence in this case.
The City Defendants cannot justify their failure to comply with the Court's
Orders by claiming that the plaintiff has not provided documents related to the
surveys. First, the Court directed the defendants to provide the required disclosure
and stated that any need to supplement expert disclosures could be later addressed,
if necessary. Second, as the recent appearances before the Court have made clear,
the City Defendants already have had access to much of the survey data as well as
the deposition of one of the plaintiff's experts (Dr. Eli Silverman) in the stop and
frisk action, Floyd v. City of New York, 08-cv-l 034 (SAS). Indeed, the City
Defendants have also taken the position that the survey data should not be treated
as confidential because it is publically available. Under these circumstances,
therefore, the fact that document discovery on plaintiff's experts is not completed
is no excuse for ignoring the Court's Orders, particularly because the City
were due September 11, 2014. (Dkt. # 262 at p. 2 ir 5.) All the relevant dates, however, were
adjourned one week on consent pursuant to the Court's endorsed order, dated July 30, 2014 (Dkt.
# 265).

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LAW OFFICE OF

NATHANIEL

B.

SMITH

Defendants already have information in which to submit expert discloses and the
Court indicated that supplementation could be an available remedy in the event
that new and relevant information became available.
Accordingly. pursuant to the Court's Scheduling Order, the September 17,
2014 Order, and Rule 37 (b)(2) of the Federal Rules of Civil Procedure, the Court
should enter an order precluding the City Defendants from offering at trial or in
connection with any motion or hearing any type expert testimony in this action.
2. The CompStat Notes and Videos.

For the past seven months the plaintiff has been seeking the production of
CompStat-related documents and videos, and the City Defendants have resisted the
plaintiff's efforts at every tum, notwithstanding several Orders by the Court for the
production of documents. This is the background.
On February 7, 2014, the plaintiff served document demands for CompStatrelated documents, including video and audio recordings, reflecting presentations
or appearances by any of the individual defendants, including Defendants Marino,
Mauriello, and Lauterbom. 2 After delays by the City Defendants, on May 28,
2014, the Court ordered the City Defendants to produce any Comp Stat meeting
documents relating to the 81 st Precinct. (Tr. 5-28-14 at pp. 22-23; Exh. A). Six
weeks later, on July 3, 2014, the City Defendants responded to that Order by
informing the plaintiff cryptically by letter that "City Defendants have not been
able to locate ... [a]ny CompStat/TrafficStat documents specific to the 81 st

2

Plaintiffs Supplemental Document Demands No. 11- 14 requested the following: 11. Copies
of all videos and audio recordings, and all documents related thereto, for all presentations by
Steven Mauriello to Comp Stat or TrafficStat or to Patrol Borough Brooklyn North while he was
the Executive Officer or the Commanding Officer of the 81 st Precinct. 12. Copies of all videos
and audio recordings, and all documents related thereto, for all presentations by Theodore
Lauterborn to CompStat and/or TrafficStat or Patrol Borough Brooklyn North while he was the
Executive Officer of the 81 st Precinct. 13. Copies of all videos and audio recordings, and all
documents related thereto, for all presentations by Michael Marino to CompStat and/or TrafficStat
or Patrol Borough Brooklyn North while he was an Assistant Chief at the NYPD. 14. Copies of
all videos and audio recordings, and all documents related thereto, for all presentations by any
other defendant to CompStat and/or TrafficStat or Patrol Borough Brooklyn North while said
defendants was a member of the NYPD.

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LAW OFFICE OF

NATHANIEL

B.

SMITH

Precinct." (Exh. B.)
After the City Defendants were unwilling to provide any explanation for this
cryptic response, the plaintiff requested by letter to the Court on July 23, 2014 that
the City Defendants provide documents or an explanation for how no such
documents existed, given that the Compstat, TrafficStat, and the related Brooklyn
North meetings are conducted on a regular basis, are videotaped, and several
witnesses and defendants testified that they regularly made presentations at these
meetings.
A week later the City Defendants produced notes from three CompStat
meetings held on May 31, 2007; March 20, 2008; and February 18, 2010. Since
our understanding is that CompStat meetings were held on a regular basis
throughout the year and since the City Defendants had produced notes for only
three meetings covering a four-year period (2007 through 2010), the plaintiff was
required (again) by letter-motion to press for an explanation or documents. As a
result, on August 29, 2014, the Court directed the City Defendants to produce
CompStat, TrafficStat and comparable documents relating to Patrol Borough
Brooklyn North in which defendant Deputy Inspector Steven Mauriello
("Mauriello"), defendant Deputy Chief Michael Marino ("Marino") and defendant
Captain Theodore Lauterborn's ("Lauterborn") participated or had knowledge
concerning." (Order, dated 8-29-14 at p. 4-5; Dkt. # 268.) In response to that
Order, on September 12, 2014, the City Defendants produced additional Comp Stat
meeting notes or summaries. (City Defendants' 9-12-14 letter at p. 2; Exh. C.)
Based on these two Comp Stat productions, the plaintiff now has, on an
attorney's-eyes-only basis, types up notes or minutes from twenty Compstat
meetings from the period from May 31, 2007 through October 8, 2009 and twelve
Traffic Stat meetings for the period from January 31, 2007 through December 1,
2010. After reviewing these documents, I am renewing our request for the
production of the videos of these meetings because the notes are not very clear and
are not the best available evidence of the matters at hand.
The notes and the summaries are in a short hand that is difficult to
understand. In addition, the notes or summaries are not by any means close to a
transcript of what transpired. For example, many of the discussions refer to images
or documents shown during the meeting and the notes or summaries do not provide
this context, and as a result the notes or summaries are confusing or make little

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LAW OFFICE OF

NATHANIEL

B.

SMITH

sense. Under these circumstances, the videos should be produced because the
videos will assist in clarifying the matters discussed at the meetings. Indeed, the
videos are the best evidence of the content of these meetings and what was actually
said whereas the notes or summaries are a statement of what the document preparer
states was said at the meeting.
Notably, the Court in the action entitled Stinson v. City of New York, 10-cv4228 (RWS) followed this same course of action by requiring the City of New
York to produce videos identified from a specific set of meeting notes. See Stinson
v. City of New York, 2014 U.S. Dist. Lexis 40255 (S.D.N.Y. Mar. 24, 2014.)
Accordingly, the plaintiff requests that the City Defendants produce the videos for
the twenty Compstat meetings and twelve TrafficStat meetings previously
identified.
3. The Appeal File 0°d the Early Intervention File.
On August 29, 2014, the Court ordered the City Defendants to produce two
files relating to the plaintiffs employment at the NYPD. First, the Court ordered
the City Defendants to produce the file related to the plaintiffs appeal of his
failing 2008 evaluation. (Order; Dkt. # 268; at p. 4.) Second, the Court ordered
the City Defendants to produce the Early Intervention Unit file. (Id.)
In response, the City Defendants informed the plaintiff by letter dated
September 12, 2014 that these files do not exist. (Ryan Shaffer Letter, 9-12-14 at
p. 2; Exh C hereto) (no responsive documents exist). Since the City Defendants
now claim that those files do not exist, the plaintiff requests that the City
Defendants provide an affidavit by a witness with knowledge attesting to a diligent
and complete search for any responsive documents and a statement under oath to
the effect that the documents could not be located.
I submit that this is a reasonable request. Several of the named defendants,
including Deputy Chief Marino and Deputy Inspector Maureillo, testified at their
depositions that documentation about the plaintiffs appeal of his 2008 evaluation
was forwarded to and maintained by a Sergeant Devino who worked under
Defendant Marino at Patrol Borough Brooklyn North. Indeed, on July 3, 2014,
the City Defendants previously (and inconsistently) represented to the plaintiff that
"there are no further documents regarding plaintiffs 'appeal file' than what have
already been produced in this matter." (Mettham Letter 7-3-14 at p. l; Exh. B
hereto; emphasis added).

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LAW OFFICE OF

NATHANIEL

B.

SMITH

Similarly, Defendant Weiss, who was a supervisor at the 81 st Precinct,
testified at his deposition that in 2008 he conducted an Internet search on Officer
Schoolcraft, discussed Office Schoolcraft with an officer at the NYPD's Early
Intervention Unit, and forwarded documents about Officer Schoolcraft to the Early
Intervention Unit at NYPD Headquarters, including the results of his Internet
search. (Weiss Tr. at 99:14-109:3; Exh. D hereto). The Early Intervention Unit is
designed to work with police officers who are experiencing significant emotional
stress while on or off the job. (See NYPD Adm. Guide 320-322; Exh. E hereto.)
According to Defendant Weiss, about a week after he contacted the Early
Intervention Unit, the NYPD removed Office Schoolcraft's badge and gun. (Id. at
101: 12-102: 10.) Thus, the fact that an 81 st Precinct supervisor created and
forwarded a file about Officer Schoolcraft's alleged psychological issues to the
Early Intervention Unit -- which was done without Officer Schoolcraft's
knowledge or consent -- is highly probative of a design to retaliate against Officer
Schoolcraft, particularly when these events occurred after Office Schoolcraft
started raising questions about the quota system in his appeal of his failing
evaluation. Indeed, under established NYPD procedures, there should be extensive
documentation regarding this referral to the Early Intervention Unit. (Exh. D
hereto.)
Under these circumstances, the plaintiff requests that the City Defendants
produce affidavits from individuals with knowledge who will attest to the
maintenance of these two files; that a diligent search has been conducted; and that
no such records have been located. These affidavits should also be required to
provide the City Defendants' explanation, if any, for why these files no longer
exist.
Respectfully submitted,

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Nathaniel B. Smith

By Hand
cc:
All Counsel
(by email)