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 M

Case 1:10-cv-06005-RWS Document 206 Filed 12/18/13 Page 1 of 6

THE CITY OF NEW YORK
MICHAEL A. CARDOZO
Corporation Counsel

LAW DEPARTMENT

Suzanna Publicker Mettham
Assistant Corporation Counsel
phone: [phone]
fax: [phone]
[e-mail]

100 CHURCH STREET

NEW YORK, NY 10007

December 18, 2013

BY ECF
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 above -referenced
matter. City Defendants write to respectfully request that the Court order plaintiff to produce

certain documents enumerated below by January 10, 2014 or otherwise be precluded from
relying on those documents in discovery, motion practice, and/or at trial in this matter.

A. Background
City Defendants served plaintiff with their First Set of Interrogatories and Document
Requests ("1st Doc. Req." and "1st Interrogatory Req.") on or about December 5, 2011, to which
plaintiff belatedly responded on April 9, 2012. See Relevant Portions of Plaintiff's Apr. 9, 2012
Responses, annexed hereto as Exhibit (hereinafter "Ex.") A. City Defendants served a second set
of Document Requests ("211c1 Doc. Req.") on or about August 20, 2012, to which plaintiff
belatedly responded on October 24, 2012.1 See Plaintiff's Oct. 24, 2012 Responses, annexed
hereto as Ex. B. Following nearly a year of extensive correspondence regarding issues relating
to plaintiff's responses to City Defendants' discovery demands, City Defendants asked plaintiff
to respond to remaining issues by December 10, 2013. When City Defendants had not received a
response, the undersigned followed up with plaintiffs counsel on December 13, 2013 by email
and informed him that City Defendants would be writing to the Court this week if no response
was received. City Defendants again attempted to reach plaintiff by telephone on December 17,
2013, but plaintiff did not return City Defendants' phone call. In sum, plaintiff has not responded
to City Defendants' attempts to meet and confer.
Pursuant to F.R.C.P. 33 and 34, because plaintiff failed to either respond, or seek an enlargement of time in which
to respond within 30 days of service of City Defendants' discovery requests, any objections to those requests have
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been waived.

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B. Messages and Communications Received Through www.schoolcraftjustice.com

Through the course of discovery, City Defendants learned that plaintiff and his prior
counsel operated a website with the URL of www.schoolcraftjustice.com, which asked members
of the NYPD to "share similar stories or comments" to that of plaintiff. In their Second Set of
Document Requests, City Defendants demanded that plaintiff produce messages and
communications received through www.schoolcraftjustice.com, including the names, contact
information, and IP addresses of all respondents. On October 24, 2012, plaintiff responded to
Document Request No. 2 by producing hundreds of pages of submissions to the website from
members of the public and the NYPD. See Ex. B at P.2. However, the documents produced by
plaintiff had been redacted to remove the names, contact information, and IP addresses of all
respondents. In the written objection and response to City Defendants' Document Request,

plaintiff claimed that the redactions were made to avoid "disclosure of information and/or
communications that are protected by the attorney -client or work -product privileges, or which
constitute material prepared for litigation purposes." City Defendants outlined their objections to
this assertion of privilege first on December 19, 2012, and then again on February 19, 2013 and

May 28, 2013. See Letters from City Defendants dated Dec. 19, 2012 and May 28, 2013,
annexed hereto as Exs. C and D, respectively.

Thereafter, on December 4, 2013, plaintiff produced a second set of documents
responsive to City Defendants' Document Request that were similarly redacted to Plaintiff's
production on October 24, 2012. By letter dated December 6, 2013, City Defendants asked
plaintiff to either re -produce the documents bearing Bates Nos. AS10059-AS10144 and the
documents previously produced on October 24, 2012 to include the un-redacted names, contact
information, and IP addresses of all respondents. See Letter from City Defendants dated Dec. 6,
2013, annexed hereto as Ex. E. In the alternative, City Defendants have asked plaintiff for the
past seven months to stipulate in writing that he would not rely on those documents and
recordings in discovery, motion practice, and/or at trial. See Exs. D and E. Plaintiff refuses to
accept either of City Defendants' proposals.
1. The
Messages
and
Communications
www.schoolcraftjustice.com Are Not Privileged

Received

Through

After City Defendants challenged plaintiff's assertion of privilege, by pointing out that
the website itself included a disclaimer stating that "information on this website is not intended

to create, and receipt or viewing of this information does not constitute, an attorney -client
relationship," the website was taken down. City Defendants, however, were able to take a screen
shot of the website as it existed prior to October 24, 2012.2 It is clear from counsels' website

disclaimer that there is no attorney -client relationship with regard to any responses to the
www.schoolcraftjustice.com website and that any claim of attorney -client privilege is not
asserted in good faith. Moreover, City Defendants have reviewed the content of the messages,
and it is clear that the individuals who provided information were not in an attorney -client
2

"The information contained on this website is for general information purposes only. Nothing on this or associated
pages, documents, comments, answers, entails, or other communications should be taken as legal advice for any
individual case or situation. This information on this website is not intended to create, and receipt or viewing of this
information does not constitute, an attorney -client relationship." Screenshot of www.schoolcraftjustice.com,
annexed hereto as Ex. F.

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relationship with any of plaintiff's counsel and their statements were not made for the purpose of
obtaining or providing legal advice; therefore plaintiff cannot maintain that an attorney -client
privilege applies.
Plaintiff's assertion of work -product privilege over the names and contact information of

the respondents is similarly flawed. City Defendants cannot conceive of, and plaintiff has
provided no evidence to indicate, a manner by which the communications themselves are not
protected by the attorney work -product privilege, but the names and contact information of those
individuals would be protected by that privilege. Names and contact information can hardly be
considered materials prepared for or by an attorney for the purposes of litigation. See Fed. R.
Civ. P. 26(b)(3)(A).
2.

Even If Privileged, Plaintiff Cannot Use the Privilege As a Sword and a

Shield

Even assuming arguendo that plaintiff is able to meet his burden of demonstrating that an
attorney work -product privilege exists with regard to the aforementioned names and contact
information, that privilege is not absolute, and plaintiff may not use that privilege as both a
sword and a shield. See Fed. R. Civ. P. 26(b)(3)(A)(ii). To the extent that plaintiff intends to rely
on statements by unnamed individuals in the furtherance of his litigation, defendants are entitled

to learn the identities of the individuals providing information, and gather their contact
information to investigate their claims and/or facilitate the service of subpoenas. City Defendants
assert that they cannot obtain the documents' equivalent by other means without undue hardship.

Importantly, City Defendants note that these documents are relevant to other aspects of

plaintiff's discovery productions. For example, on April 9, 2012 plaintiff produced two
recordings dated after plaintiff left the 81st Precinct. Plaintiff has not provided any information
regarding the name of the recorder, the manner of recording, the chain of custody, and other
factors impacting authenticity and admissibility of those recordings at trial. If plaintiff were to
provide an unredacted version of the challenged productions, such documents appear to contain
the identity of the individual who recorded the abovementioned recordings. City Defendants are

entitled to know the identity of that individual in order to probe the provenance of those
recordings in order to challenge their potential admission at trial according to the seven step
authentication process favored in the Second Circuit. See, e.g., Penguin Books U.S.A., Inc. v.
New Christian Church of Full Endeavor, Ltd., 262 F. Supp. 2d 251, 263-264 (S.D.N.Y. 2003)
(citing United States v. Dinero Express, Inc., 2000 U.S. Dist. LEXIS 11314 (S.D.N.Y. 2000);
United States v. Morrison, 153 F.3d 34, 56 (2d Cir. 1998)).

Because City Defendants have a substantial need for the requested information, which
City Defendants are unable to obtain through other means, then plaintiff should be required to
either provide the individuals' names and contact information or be precluded at trial from
calling at trial and/or offering any evidence provided by the individuals whose identity plaintiff
will not disclose.
3.

It Is Plaintiffs Obligation to Obtain the Requested Information from

Prior Counsel

In addition to asserting the abovementioned claims of privilege, plaintiff's current
counsel has also claimed that only plaintiff's former counsel has access to the unredacted
documents, and therefore, City Defendants must subpoena plaintiff's prior counsel in order to

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Case 1:10-cv-06005-RWS Document 206 Filed 12/18/13 Page 4 of 6

obtain the unredacted versions. This is an inappropriate and unacceptable option. As these are
documents that plaintiff intends to rely on at trial, and are allegedly in the possession of
plaintiff's prior counsel, plaintiff must either confer with prior counsel and produce the requested
documents, or be precluded from offering such evidence at trial in this matter.

Accordingly, City Defendants request that the Court order plaintiff to re -produce the
documents bearing Bates Nos. AS10059-AS10144 and the documents produced on October 24,
2012 in response to City Defendants' Second Set of Document Requests, Document Request No.
2, to include the un-redacted names, contact information, and IP addresses of all respondents by
January 10, 2014. If plaintiff does not produce the aforementioned documents by January 10,
2014, City Defendants request that plaintiff be barred in discovery, motion practice, and/or at

trial from relying on any of the aforementioned documents, or the information and witnesses
contained therein, including but not limited to the recordings produced on April 9, 2012 by
plaintiff dated after plaintiff left the 81st Precinct.

C. Memoranda Allegedly Given By Plaintiff to Non -Party NYPD Employees
In a book titled The NYPD Tapes, which was published in August 2013, former Village
Voice reporter Graham Rayman discussed memoranda that plaintiff claimed to have sent to a
supervisor reporting alleged misconduct in the 81st Precinct in 2006 and 2007. The NYPD has
searched for these documents, but upon information and belief, no records have been found.
After the internal search for these documents proved fruitless, City Defendants asked plaintiff to
produce these and other documents and recordings that were mentioned in The NYPD Tapes. See
Letter dated Dec. 3, 2013, annexed hereto as Ex. G. Plaintiff has not responded to that letter.

One such document referenced by The NYPD Tapes is an April 2006 memorandum
allegedly written by Adrian Schoolcraft to former 81S1 Precinct Commanding Officer, Deputy
Inspector Robert Brower "to notify [D.I. Brower] of a serious problem within the precinct, that I
feel has now become a chronic safety issue. The problem [Adrian Schoolcraft is] reporting is
forced overtime." See Relevant Pages of The NYPD Tapes, annexed hereto as Ex. H, at P.41. The
second document is a memorandum written by Adrian Schoolcraft on or after June 2007 to D.I.
Brower in which Adrian Schoolcraft alleged that a Lieutenant Jones "threatened to punish the

whole shift of officers for what Schoolcraft did." See Ex. H at P.44. As plaintiff is alleging
misconduct on behalf of the City Defendants beginning at least as early as 2006 (see, e.g., Pl. 2nd

Am. Compl. at 40), such allegations of misconduct and plaintiff's claimed "whistleblowing" are
highly relevant. Moreover, these documents are responsive to a number of general and specific
document requests made by City Defendants, including, but not limited to, demands for:

"[C]omplaints made by plaintiff to any city, state, and/or federal government agency
including, the NYPD Quality Assurance Division ("QAD"), the NYPD's Internal Affairs

Bureau ("IAB") of the New York City Police Department, any elected official or
representatives, and attorney general and/or inspector general offices." Ex. A at Doc.
Req. No. 11.

"Any and all documents, notes, recordings, etc. relevant to, related to, or concerning
plaintiffs allegations that "plaintiffs supervisors at the 81st Precinct began to create an

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Case 1:10-cv-06005-RWS Document 206

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increasingly hostile work environment for [plaintiff]" as alleged in paragraph 87 of the
Amended Complaint." Ex. A at Doc. Req. No. 49.3

"[A]ny and all evidence of "NYPD misconduct and corruption" that plaintiff collected
and documented on or before October 31, 2009" Ex. B at Doc. Req. No. 3.

For the foregoing reasons, City Defendants respectfully request that the Court order
plaintiff to produce copies of these documents, and any other documents regarding plaintiff's
prior "whistleblowing," by January 10, 2014.

D. Letter from Plaintiff to Prior Counsel
As this Court is well aware, media "leaks" and reports regarding both confidential
documents and other sensitive issues have plagued this lawsuit. In fact, this Court has previously
permitted City Defendants to obtain affidavits from all counsel and plaintiff indicating whether
they were the source of a particularly egregious leak in early 2012. Following more recent media
issues, the Medical Defendants brought an article by Leonard Levitt to this Court's attention,
wherein the author indicated that he had been told that plaintiff fired his prior counsel because he
wanted "a more media -driven, public airing than is now occurring." See The Schoolcraft
Dilemma, Leonard Levitt, annexed hereto as Ex. I. At oral arguments for a separate issue on
November 13, 2013, plaintiff made representations to this Court that the Levitt statement was a
complete falsehood. However, in The NYPD Tapes, Mr. Rayman seems to confirm Mr. Levitt's
version of events, and even refers to a letter that Adrian Schoolcraft sent in order to fire prior

counsel, which seems to have been later sent by plaintiff to journalists Mr. Levitt and Mr.
Rayman. See Ex. H at P.240. Though City Defendants acknowledge that this document would
have otherwise been a privileged communication, to the extent that this document was provided
to Mr. Rayman or Mr. Levitt, any privilege that may have existed has now been waived. City
Defendants therefore request that the Court order plaintiff to produce a copy of the November 7,
2012 letter from Adrian Schoolcraft to Jon Norinsberg to City Defendants by January 10, 2014.
E.

Complaint Reports Given to QAD

Plaintiff has repeatedly claimed that the NYPD "stole" copies of NYPD Complaint
Reports that plaintiff had collected in order to report on misconduct. Plaintiff alleged that certain
documents were removed from his apartment on October 31, 2009, and that other documents

were removed from his locker at the 81st Precinct around that same time. In fact, plaintiff
alleged in his discovery responses that the documents he provided to QAD on October 7, 2009
were in the sole custody of the NYPD and that plaintiff was not in possession of any documents
responsive to that request. See Ex. A at Doc. Req. No. 71. However. according to The NYPD
Related Interrogatory Requests also sought to have plaintiff -[i]dentify all city, state, and federal
government agencies, to whom plaintiff made complaints regarding the NYPD within the past five (5)
3

years including, but not limited to, the NYPD Quality Assurance Division ("QAD"), the NYPD's
Internal Affairs Bureau ("IAB-) of the New York City Police Department, any elected official or
representatives, and attorney general and/or inspector general offices" and lildentify all documents,
audio and/or video recordings prepared and/or produced by plaintiff, or any other person on behalf of
plaintiff, that relate to plaintiffs employment with the NYPD, as well as the claims and subject matter of
this litigation." (1' Set of Interrogatories, Interrogatory Nos. 12 and 18).

Case 1:10-cv-06005-RWS Document 206 Filed 12/18/13 Page 6 of 6

Tapes, plaintiff provided a copy of the "same questionable crime reports he gave QAD in
October," to reporter Rocco Parascandola in or around March 2010. See Ex. 11 at P.165. To the
extent plaintiff is alleging that documents were stolen from him in October 2009, evidence of

plaintiff's possession of any of those same records in March 2010 is necessary for City
Defendants to dispute plaintiff's allegations of theft. Additionally, those documents are relevant
to a number of City Defendants' Discovery Requests, including, but not limited to, requests for:

"[C]omplaints made by plaintiff to any city, state, and/or federal government agency
including, the NYPD Quality Assurance Division ("QAD"), the NYPD's Internal Affairs

Bureau ("IAB") of the New York City Police Department, any elected official or
representatives, and attorney general and/or inspector general offices." Ex. A at Doc.
Req. No. 11.

.

"[A]ny and all documents, notes, files, recordings, etc. provided to the Quality Assurance
Division ("QAD") on October 7, 2009." Ex. A at Doc. Req. No. 71.

Therefore, City Defendants respectfully request that the Court order plaintiff to provide
copies of the Crime Complaints he is still in possession of by January 10, 2014.
F.

Conclusion

For the reasons stated above, City Defendants respectfully request that the Court endorse
the enclosed Proposed Order, compelling plaintiff to produce the aforementioned documents by
January 10, 2014.
City Defendants thanks the Court for its time and consideration of these requests.
Respectfully submitted,

Kiittfpa,
.

Nathaniel Smith (By ECF)
Attorney, for Plaintiff

cc:

Gregory John Radomisli (By ECF)
MARTIN CLEARWATER & BELL LLP

Attorneys for Jamaica Hospital Medical Center

.

Brian Lee (By ECF)
IVONE, DEVINE & JENSEN, LLP
Attorneys for Dr. Isak Isolcov
'Bruce M. Brady (By ECF)
CALLAN, KOSTER, BRADY & BRENNAN, LLP
Attorneys for Lillian Aldana-Bernier
Walter A. Kretz , Jr. (By ECF)
SCOPPETTA SE1FF KRETZ & ABERCROMBIE
Attorney for Defendant Mauriello
6

Suzanna Publicker Mettham
Assistant Corporation Counsel
Special Federal Litigation Division