Schoolcraft v. The City Of New York et al

Filing 600

DECLARATION of Alan H Scheiner in Opposition re: 566 FINAL MOTION for Attorney Fees for Levine & Gilbert and Peter J. Gleason, Esq.., 559 MOTION for Attorney Fees , Costs and Disbursements.. Document filed by The City Of New York. (Attachments: # 1 Affidavit Declaration of Alan H Scheiner Previously Filed April 8, 2016, # 2 Exhibit Exhibit A, # 3 Exhibit Ex A-1, # 4 Exhibit Ex A-2, # 5 Exhibit Ex B, # 6 Exhibit Ex C, # 7 Exhibit Ec D, # 8 Exhibit Ex E, # 9 Exhibit Ex F, # 10 Exhibit Ex G, # 11 Supplement Ex H, # 12 Exhibit Ex I, # 13 Exhibit Ex J, # 14 Exhibit Ex K, # 15 Exhibit Ex L, # 16 Exhibit Ex M, # 17 Exhibit Ex N, # 18 Exhibit Ex O, # 19 Exhibit Ex P, # 20 Exhibit Ex Q, # 21 Exhibit Ex R, # 22 Exhibit Ex S, # 23 Exhibit Ex T, # 24 Exhibit Ex U, # 25 Exhibit Ex V, # 26 Exhibit Ex X, # 27 Exhibit Ex Y, # 28 Exhibit Ex Z, # 29 Exhibit Ex AA, # 30 Exhibit Ex BB, # 31 Exhibit Ex CC, # 32 Exhibit Ex DD)(Scheiner, Alan)

EXHIBIT I

THE CITY OF NEW YORK

LAW DEPARTMENT

MICHAEL A. CARDOZO

100 CHURCH STREET
NEW YORK, NY 10007

Corporation Counsel

SUZANNA PUBLICKER
phone: [phone]

fax: [phone]
email: [e-mail]

October 26, 2012

BY FAX [phone]
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: Schoolcraft v. The City of New York, et al.
10 -CV -6005 (RWS)

Your Honor:

I am the Assistant Corporation Counsel in the office of Michael A. Cardozo,
Corporation Counsel of the City of New York, assigned to represent the City Defendants in the
above -referenced matter. City Defendants write in opposition to plaintiff's October 18, 2012
motion seeking to modify the so -ordered Attorneys' Eyes Only Stipulation and allow plaintiff
access to the documents produced by City Defendants pursuant to that Stipulation.

City Defendants Never Agreed to a Temporary Designation
Plaintiff's October 18th motion alleges that the designation of certain materials as
Attorneys' Eyes Only under the Attorneys' Eyes Only Stipulation, endorsed by the Court on
October 5, 2012, was a temporary one. Plaintiff is wrong. The parties never discussed, nor did
City Defendants ever agree to, any such temporal limitation of the Stipulation. According to
generally accepted principles of contract law, absent ambiguity, the parties' intentions must be

discerned from the four corners of the document, and extrinsic evidence should not be
considered. The plain language of the Attorneys' Eyes Only Stipulation and Order states that it
shall be in place "[u]ntil such time as the Court orders otherwise," not until the City Defendants
receive an affidavit from plaintiff. However, even if extrinsic evidence could be considered,
plaintiff has not, and cannot, point to any such evidence that would support his position.
Regardless of the foregoing, plaintiff's application is premature as the protective
order explicitly provides a means to address plaintiff's concerns. Pursuant to the Attorneys'
Eyes Only Stipulation, "[i]f plaintiff objects to the designation of particular documents as
"Confidential Materials - Attorneys' Eyes Only" plaintiff shall state such objection in writing to
the defendants within 60 days of receipt[.]" (emphasis added). Accordingly, counsel for plaintiff
should review the documents produced under the Attorneys' Eyes Only Confidentiality Order
and identify, with particularity, which documents they believe plaintiff is entitled to and/or

Honorable Robert W. Sweet
Schoolcraft v. The City of New York, et al.
October 26, 2012
Page 2
which documents require plaintiff's input in order to litigate his case, before proceeding further
with the instant application.

Plaintiff Has Not Met The Burden Required to Modify a Protective Order
Though he has not phrased it as such, plaintiff is moving for a modification of the
so -ordered Attorneys' Eyes Only Confidentiality Stipulation, however, he has not met the burden

required to do so. According to the Second Circuit, "a district court should not modify a
protective order.
'absent a showing of improvidence in the grant of [the] order or some
extraordinary circumstance or compelling need.' Securities and Exchange Commission v.
.

.

TheStreet.com, 273 F.3d 222, 229 (2d Cir. 2001); see also Martindell v. International Telephone
and Telegraph Corporation, 594 F.2d 291, 296-97 (2d Cir. 1979). Moreover, there is "a general
and strong presumption against access to documents sealed under protective order when there
was reasonable reliance upon such an order." SEC, supra at 231.

As an initial matter, prior to its execution and endorsement, all counsel had an
opportunity to review and object to the terms of the Attorneys' Eyes Only Stipulation. In fact,
there were several drafts exchanged amongst the parties and it took nearly six months to agree on
the final language. In the end, all counsel, including plaintiff's, consented to the language of the
Stipulation. Thereafter, the Court reviewed it and "so ordered" it without modification on
October 5, 2012. In light of the negotiations between the parties concerning the Stipulation, and
the Court's subsequent review and endorsement of the proposed Order, plaintiff has failed to
show any improvidence in the granting of the Protective Order.

Further, plaintiff has failed to demonstrate a compelling need for access to any
materials produced pursuant to the protective order at issue. In Savage & Assocs. P.C. v. K&L
Gates LLP (In re Teligent, Inc.), 640 F.3d 53, 59 (2d Cir. 2011), the Court implied that a party
seeking to modify a protective order based on "compelling need" is required to make such a
showing for each particular document it seeks to have disclosed. Plaintiff has stated that he
needs to view the documents to "meaningfully assist counsel in preparing for depositions and

formulating further document requests." However, as explained in more detail below, a
significant number of documents designated Attorneys' Eyes Only are wholly unrelated to
plaintiff's allegations, and instead, reflect sensitive information concerning both parties and nonparties to this action. Plaintiff has not mentioned a single particular document that he believes
was incorrectly designated as Attorneys' Eyes Only, nor has he made an attempt to explain why
he has a compelling need for any spe cific doc ument. In light of the fact that plaintiff is
represented by two separate law firms which should be more than able to represent his interests,

his contention that he needs unfettered access to all of the documents produced by City
Defendants is unavailing.
Finally, plaintiff's application should be denied because City Defendants

reasonably relied upon the protections afforded by the Attorney's Eyes Only Confidentiality
Stipulation and Order in producing the subject documents. This Court has held that reliance may
be presumed where information is disclosed pursuant to protective order. Ionosphere Club. Inc.
v. Ameriacn National Bank and Trust Company of Chicago, 156 B.R. 414, 434 (S.D.N.Y. 1993)
(Sweet, J.), aff d, 17 F.2d 600 (2d Cir. 1994) ("Absent a showing of improvidence in the grant of
a ... protective order or some extraordinary circumstance or compelling need... a witness should
be entitled to rely upon the enforceability of a protective order"); see also SEC, 273 F.3d at 229-

Honorable Robert W. Sweet
Schoolcraft v. The City of New York, et al.
October 26, 2012
Page 3
30 ("if previously entered protective orders have no presumptive entitlement to remain in force,
parties would resort less often to the judicial system for fear that such orders would be readily set
aside in the future"); AT&T Corporation v. Sprint Corporation, 407 F.3d 560, 562 (2d Cir. 2005)
("It is 'presumptively unfair for courts to modify protective orders which assure confidentiality
and upon which the parties have reasonably relied"). The documents at issue were produced four
days after the Court so -ordered the Stipulation, thus, it is clear that City Defendants' relied upon
the Protective Order in producing the documents.

Due to the nature of the documents designated "Attorney's Eyes Only", it was
reasonable for City Defendants to produce them as such. City Defendants note for the Court's
information, that we have not blindly designated all documents produced as Attorneys' Eyes
Only. In fact, City Defendants have produced over 2,000 pages of non -confidential documents
and approximately 3,000 pages of confidential documents not containing the Attorneys' Eyes
Only designation, in total, around 5,000 pages of documents which may be shared with plaintiff.

However, the records deemed Attorneys' Eyes Only confidential in this matter involve
employment records subject to protection under Public Officers Law Section 87(2)(g),
documents that are part of ongoing investigations,' and documents that are protected under the
deliberative process privilege. Also produced pursuant to the Attorneys' Eyes Only Stipulation

were criminal and financial background checks into non-parties to the litigation.

City

Defendants believe these extremely personal files should not be made available to plaintiff or
any individual party to this litigation.
Additionally, many Attorneys' Eyes Only documents do not involve Schoolcraft's

allegations regarding October 31, 2009, as was implied by counsel in their motion. The
Brooklyn North Investigations Unit ("BNIU") and the Internal Affairs Bureau ("IAB")
investigated a number of plaintiffs allegations. In conducting those investigations, BNIU and
IAB have interviewed dozens of individuals, many of whom were not present at, and were not

questioned on, Adrian Schoolcraft's allegations of retaliation or the incident occurring on
October 31, 2009. In fact, the only reference many of the recordings make to Adrian Schoolcraft

are a couple introductory questions pertaining to whether the interviewee knew plaintiff.
Additionally, while investigating claims of crime complaint manipulation, IAB investigated
specific individuals who were arrested by non-party officers to this litigation. These arrestees
have no information relevant to plaintiffs claims in this matter, and their security and privacy

rights should not be jeopardized by unnecessarily removing the Attorneys' Eyes Only
designations.

Good cause existed for the Attorney's Eyes Only designations at the time they
were made, and continues to exist for the confidentiality designations now. Plaintiff cannot
demonstrate that the Attorneys' Eyes Only Stipulation was improvidently granted, that City
Defendants did not rely on that so -ordered Stipulation when producing documents on October 9,
2012, nor that plaintiff has a compelling need for access to any specific documents. Therefore,
plaintiffs request to modify the Stipulation should be denied.
The IAB investigation into plaintiff's suspension, his claims of retaliation, and the incident occurring on October
31, 2009, is ongoing. In most litigations, City Defendants would not have produced a single page of these
documents or would have sought a stay of the case pending the closing of the investigation. However, in a good
faith effort to move this litigation along, City Defendants produced the documents subject to the applicable
confidentiality designations.

Honorable Robert W. Sweet
Schoolcraft v. The City of New York, et al.
October 26, 2012
Page 4

Confidential Discovery Documents Were Produced to the Village Voice
Though many, if not all, of the documents would have been designated Attorneys'
Eyes Only regardless of the particular circumstances of the case, the existence of a leak to the

media in this matter makes the continued existence of an Attorneys' Eyes Only Stipulation
essential. As the Court may recall, in a Village Voice article dated March 7, 2012, reporter
Graham Rayman indicated that he was in possession of a 95 -page Quality Assurance Division
("QAD") Report. Furthermore, only two days later on March 9, 2012, a New York Times article
reporting on the Village Voice article stated that "[u]sing the state's Freedom of Information
Law, Mr. Rayman of The Village Voice sought the report, which was completed in June 2010.
The police denied his request. He appealed. They denied it again. He finally obtained a copy
through back channels and published an article this week." 2, (emphasis added). The QAD
Report remained confidential within NYPD custody for nearly two years, however, only months
after its disclosure during discovery, it was published.4 During a conference on or about March
28, 2012, Your Honor granted City Defendants' application to conduct discovery on the source
of leak. To date, the issue has not been resolved.

Plaintiff contends that because he has denied leaking the documents both in an
affidavit and during his deposition, that is proof positive that he did not provide the media with
the documents. 5 City Defendants are not assured by either. Despite plaintiff's contentions, he is
the only party in this ligation with an apparent prior relationship with Graham Rayman. In any
event, City Defendants respectfully submit that in order to decrease the likelihood of future leaks
of confidential information, the field of individuals with access to such documents should remain
limited to the attorneys handling this matter. In light of plaintiff's inability to demonstrate any
compelling need for any specific document, there does not appear to be any reason to modify the
protective order.

Telling the Truth Like Crazy, N.Y. Times, Jim Dwyer, March 9, 2012, available at
http://www.nytimes.com/2012/03/09/nyregion/officer-sues-claiming-police-retaliation-for-truthtelling.html? r=2&ref=nyregion.
3 The NYPD has confirmed that Graham Rayman made two FOIL requests related to the Schoolcraft matter and that
no records were provided to Mr. Rayman pursuant to these requests.
2

4 City defendants note that two years ago, Adrian Schoolcraft provided Rayman the digital audio recordings
referenced in the instant lawsuit, and spoke with him at length regarding the allegations.
5

Plaintiff further alleges that because City Defendants have been unable to uncover evidence that Adrian

Schoolcraft was involved in the QAD leak, plaintiff should be given access to Attorneys' Eyes Only confidential

information. However, to the extent that plaintiff was involved, plaintiff and Graham Rayman are the only
individuals that would have direct evidence of the leak. Graham Rayman is protected from subpoena power of this
Court by the journalist's privilege, leaving plaintiff as the only other potential source of information. Plaintiff has

refused to provide City Defendants with any documents that he is in possession of that would reflect his
communications with the media in this matter. Indeed, in response to discovery demands for documents reflecting
any communications with any media outlet regarding the allegations of the instant lawsuit, plaintiff responded that it
was "vague, ambiguous, overbroad and unduly burdensome, to the extent that it seeks documents that are more
readily obtained from another source." Plaintiff cannot use his silence as both a sword and a shield, by denying that
City Defendants have any evidence, but also refusing to provide responses to Document Requests that might reveal
relevant evidence.

Honorable Robert W. Sweet
Schoolcraft v. The City of New York, et al.
October 26, 2012
Page 5

Plaintiff Cannot Guarantee the Privacy of Documents Provided to Him
During his deposition, when asked about the leaked documents, plaintiff stated
that his counsel had given him a copy of the QAD Report on a CD, which plaintiff has kept in
the house that he shares with his father. When asked whether plaintiff's father had access to the
CD, plaintiff claimed that his father was "technically insufficient when it comes to computers."
However, according to at least one internet source, plaintiff's father has sent emails to journalists

since as early as November 13, 2009, thus, demonstrating that plaintiff's father is not as
technically inept as plaintiff claims.6 Simply stated, moving forward, City Defendants have no
good faith basis to believe that documents given to plaintiff would be protected from further
disclosure.

Conclusion

The Protective Order to which all parties stipulated before its entry represents a
practical and efficient solution to the many knotty and time-consuming disputes that the parties'
confidentiality concerns spawn in complex litigation such as this. That Order was not entered by

the Court "improvidently" and there are no "extraordinary circumstances" warranting its
modification now. The Court had "good cause" to enter that Order on October 5, 2012 and
"good cause" supports that Order today. Therefore, for the reasons stated herein, City
Defendants respectfully request that the Court deny plaintiffs request to modify the so -ordered
Attorneys' Eyes Only Stipulation, allowing plaintiff access to the documents produced subject to
it.

City Defendants thank the Court for its consideration.
Respectfully submitted,

Suzanna Publicker
Assistant Corporation Counsel
cc:

Jon L. Norinsberg (By Fax [phone])
Attorney for Plaintiff
225 Broadway, Suite 2700
New York, New York 10007
Cohen & Fitch, LLP (By Fax [phone])
Gerald Cohen
Joshua Fitch
Attorneys for Plaintiff
233 Broadway, Suite 1800
New York, New York 10279

6 Adrian Schoolcraft: Now It's Getting Serious, NYPD Confidential, Leonard Levitt, January 31, 2011, available at
http://nypdconfidential.com/columns/2011/110131.html.

Honorable Robert W. Sweet
Schoolcraft v. The City of New York, et al.
October 26, 2012
Page 6
Gregory John Radomisli (By Fax [phone])
MARTIN CLEARWATER & BELL LLP

Attorneys for Jamaica Hospital Medical Center
220 East 42nd Street 13th Floor
New York, NY 10017
Brian Lee (By Fax [phone])
IVONE, DEVINE & JENSEN, LLP
Attorneys for Dr. Isak Isakov
2001 Marcus Avenue, Suite N100
Lake Success, New York 11042
Bruce M. Brady (By Fax [phone])
CALLAN, KOSTER, BRADY & BRENNAN, LLP
Attorneys for Lillian Aldana-Bernier
1 Whitehall Street
New York, New York 10004
Walter Aoysius Kretz , Jr. (By Fax [phone])
SEIFF KRETZ & ABERCROMBIE
Attorney for Defendant Mauriello
444 Madison Avenue, 30th Floor
New York, NY 10022