Schoolcraft v. The City Of New York et al

Filing 283

LETTER addressed to Judge Robert W. Sweet from Nathaniel B. Smith dated 10/16/2014 re: Response to letter submitted by City Defendants, dated October 14, 2014. (ajs)

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~~.n.~~~~~~~==~ October 16, 2014
Honorable Robert R. Sweet
United States District Court Judge
Southern District ofNew York
500 Pearl Street
New York, New York 1007
Schoolcraft v. The City of New York, et al.,
10-cvw6005 (RWS)(DCF)
Dear Judge Sweet:

As one of the plaintiffs counsel in this action, I am writing to the Court
to respond to the letter submitted by the City Defendants, dated October 14, 2014,
and the letter submitted by Brian Lee, Esq., dated October 14, 2014. In addition, I
write the Court to seek clarification on an issue about the plaintiff's obligation to
designate witnesses for trial in this action. I address each of these matters below in
turn.
1. The City Defendant's Opposition Letter

In the City Defendant's October 14, 2014 letter, they submit their
opposition to the plaintiff's October 7, 2014 letter~motion, which relates to three
outstanding discovery issues: (a) the City Defendants' failure to designate a expert
or serve a report; (b) the CompStat videos; and (c) the Appeal and Early
Intervention Files.

a.

The City Defendant's Expert Disclosure

As set forth in our October

7th

letter, the Court's Scheduling Order and

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the Court's September 17, 2014 Order, required all the defendants to make expert
disclosure on September 18, 2014. The City Defendants failed to do so and as a
result, the plaintiff requests that the Court preclude the City Defendants from
offering any expert evidence in this case.
In opposition, the City Defendants admit that there was a deadline and
admit that they failed to comply with it. As an excuse, however, the City
Defendants seek to blame the plaintiff by claiming that the plaintiff's alleged
"delays,, in producing documents from the plaintiff's police practices experts,
Professors Etemo and Silverman, justify their failure to comply with the
September 18, 2014 deadline. The argument should be rejected for basic two
reasons.

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First, plaintiff was ordered on September 17, 2014 to produce the 2008
and 2012 survey data mentioned in the report and the deadline for the City
Defendants expert disclosure was September 18, 2014. Thus, the fact that
documents were produced after September 18, 2014 cannot be an excuse for failing
to comply with the September 18th deadline. Indeed, at the September 17, 2014
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conference, I raised this exact issue, and the Court flatly rejected the defendants'
joint request for an extension of the deadline and directed that expert disclosures be
· made pursuant to the schedule. (See Exh. A: Sept. 17, 2014 Transcript at pp. 2427.)

In any event, the plaintiff's expert report was not limited to the· survey
issue. The plaintiff's police practice report discussed several other issues,
including the nature of Comp Stat and how Comp Stat became a numbers-driven
management culture; the Blue Wall of Silence; and various ways in which the
NYPD substantially departed from established police procedures in the way they
responded to and documented incidents and interactions with Officer Schoolcraft.
No report by the City Defendants on these issues was served. Thus, the production
of the swvey data, which has nothing to these other issues, cannot be a basis for .·
failing to comply with the deadline. Indeed, the defendants completed their
examination of Professor Etemo today and not one of the defendants asked him
any questions about the underlying survey data that was produced. Accordingly,
the City Defendants simply have no good excuse for failing to provide any expert
report.
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b.

3

The CompStat Videos

The City Defendants oppose the plaintiffs request for the CompStat
videos, suggesting that the videos are not relevant and that the ambiguous nature of
the notes of the meeting is not a sufficient justification for the production of the
videos. This position should be rejected for two reasons.
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First, the CompStat videos are directly relevant to the pressure being
created by the top brass at the NYPD to generate fixed goals for specific numbers
of stops, arrests and summons. Indeed, the videos, which capture precisely what
the top brass told precinct and borough commanders, are the best evidence of that
fact. Thus, the relevancy objection is meritless.
Second, as noted in our October th letter, the notes and summaries are
vague, short-hand versions of what occurred in these meetings. They are not ·
remotely close to comprehensive minutes and thus are not the best available
evidence. The videos are. Accordingly, the requested videos should be produced
because the videos are relevant and the notes are not as probative of the matter to
be proven.

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The Appeal File and the Early lntel"Vention File

The City Defendants' object to providing an affidavit by a person with
lmowledge about the fact that Officer Schoolcraft's Appeal file and the Early
Intervention file no longer exist. An affidavit should be required to show that after
diligent search, the documents could not be located. A letter from a Law
Department attorney is insufficient as a matter of evidence and as a matter of fact
because the attorney did not personally conduct the search and otherwise lacks the
required personal knowledge. Indeed, reliance merely on a cryptic response by
counsel raises issues about the witness-advocated rule whereas an affidavit from a
witness with knowledge confirms the facts directly and avoids this proof issue at
trial.
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An affidavit should also be required because that is precisely what the ·
City Defendants requested, and the Court ordered, in connection with the City
Defendants' request for supplemental information about the plaintiff's mitigation
of his damages. As the Court may recall, last month at the request of the City
Defendants, the Court directed Officer Schoolcraft to provide an affidavit about his
earnings and job search effort since his deposition. Indeed~ in that case, a letter

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from plaintiff's counsel stating that the plaintiff had no responsive documents was
held to be insufficient. Accordingly, it is entirely appropriate that the City
Defendants provide an affidavit about the NYPD's diligent efforts to search for the··
Appeal file and the Early Intervention file.

2.

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The Disposition Motion Schedule
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In Mr. Lee's October 14th letter, the defendants jointly request that"the
Court entered a scheduling order for dispositive motion that gives the plaintiff only
21 days -- from December 23, 2014 to January 14, 2015 -- in which to oppose
summary judgment motions. The defendants have steadfastly refused to consent to
a schedule that would provide for 30 days in which to oppose summary judgment
motions. Indeed, in their letter the defendant do not offer any reason to justify a
short opposition period. Nor do they provide any reason for departing from the
standard practice of giving a party at least 30 days in which to oppose a summary
judgment motion.

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A 30-day period is the bare minimum for opposition in this case. Based·
on my discussions with defense counsel I expect thatflve motions for summary
judgment will be filed by the five groups of separately-represented defendants: (l).'
the City Defendants; (2) Defendant Mauriello; (3) Jamaica Hospital; (4) Dr.
Isakov; and (5) Dr. Bernier. The discovery record in this case is massive with over
12,000 pages of documents produced and at least 32 depositions of fact witnesses
and experts. Indeed, the Court recently granted the defendants permission to
double the size of the page limit on their summary judgment briefs precisely
because ofthe complexity of the case and the claims at issue. Twenty-one days is
simply not enough time in which to respond to five full-blown summary judgment
motions (i.e., 4.2 days per motion) and the defendants simply fail to point to any··.
legitimate reason for this request.

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3. The Witnesses For Trial

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At the last conference before the Cow1 the Court gave the City
Defendants the opportunity to take the deposition of 12 police officers who had
made claims of retaliation in the past. These officers were listed in the plaintiff's
supplemental disClosures along with the identification of three other persons who
may have know ledge about retaliation. Beyond those 15 there are other individuals
are also potential witnesses who may be called at trial; indeed, as expert discovery
continues, we believe that more individuals may be identified. For example, a ·

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. NATHANIEL

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SMITH

Sergeant Robert Borrelli was identified in our August 11, 2014 police practices
expert report as another victim of retaliation and we learned more about the nature
oftha.t individual's experiences based on questions posed today at the expert's
deposition. Thus, the plaintiff continues to learn about information that may be
relevant at trial and we respectfully submit that the plaintiff has the right (and the .
obligation) to continue to identify potential witnesses and that during the pre-trial
order process the parties then identify witnesses for trial. In short, our trial .
preparation continues. Under these circwnstances, I write to raise a concern I have ·_
with the way the City Defendants are interpreting the Court's rulings about witness
identification. See City Defendants' October 14, 2014 letter at p. 2 ("plaintiff
himself recently identified a dozen new witnesses months after the close of fact
discovery and nearly eight months after previously being ordered to do so.")
Pursuant to Rule 26(a)(3), a party must -- thirty days before trial -disclose witnesses for trial and those witnesses may present at trial if the need
arises. Here, we have been conducting extensive discovery in this complex case
for over a year and we continue to prepare for trial and, as such, have not yet
determined who on behalf of the plaintiff will be needed for trial. Yet the City·
Defendants appear to be taking the position that the plaintiff must now designate
his trial witnesses, even before discovery is completed, before summary judgment
motions have been filed, and before the pre-trial order process has yet to begin.

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In order to avoid confusion, I am requesting that the Court addresses
this issue at a conference, and if necessary establish a fixed time by which all .
parties must list their witnesses for trial. I note in this regard the defendants have
not provided the plaintiff with a list of their trial witnesses; they have only
identified individuals who may have some knowledge about some respect of this
complex action.
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Nathaniel B. Smith

By Fax [phone]
cc: All Counsel
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