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)

Download PDF
EXHIBIT V THE CITY OF NEW YORK LAW DEPARTMENT MICHAEL A. CARDOZO SUZANNA PUBLICKER phone: (212) 788-1103 100 CHURCH STREET NEW YORK, NY 1 0007 Corporation Counsel fax: (212) 788-9776 email: spublick@law nyc gov March 12, 2012 BY HAND Honorable Robert W. Sweet United States District Judge Southern District of New York 500 Pearl Street New York, New York 10007 Re: Sehoolerall 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 of New York, the New York City Police Department ("NYPD"), and individual defendants Deputy Chief Michael Marino, Assistant Chief Patrol Borough Brooklyn North Gerald Nelson, Captain Theordore Lauterbom, Lieutenant Joseph Goff, Sergeant Frederick Sawyer, Sergeant Kurt Duncan, Lieutenant Christopher Broschart, and Sergeant Shantel James (collectively the "City Defendants") in the above -referenced matter. City Defendants write to respectfully request that the Court order the parties herein to swear/affirm that they did not provide a confidential NYPD Quality Assurance Division ("QAD") report to the Village Voice newspaper in violation of the Stipulation and Protective Order in this matter, and further, that they have no knowledge of the source of the leak. See Village Voice article dated March 7, 2012, entitled "The NYPD Tapes Confirmed", annexed hereto as Exhibit A.1 City Defendants also respectfully request that the Court relieve them of their obligation to produce further confidential materials in this litigation until the remaining parties provide the requested affidavits. By way of background, plaintiff, a former police officer with the NYPD, brings this action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1988 for violations of his Fourth and Fourteenth Amendment rights, and under New York State tort law against the City Defendants, ten (10) individually -named members of the NYPD, Jamaica Hospital, and two (2) individually named Jamaica Hospital defendants. -The NYPD Tapes Confirmed, The --- Village Voice, Graham Rayman, httpalwww.villagevoice.com120 I 2-03-07/news/the-nypd-tapes-von finned/. March 7, 2012, available at Honorable Robert W. Sweet Schoolcraft v. The City of New York, et al. March 12, 2012 Page 2 Plaintiff served City Defendants with requests for Documents and Interrogatory Responses on or about May 20, 2011. Plaintiff's Document Request No. 14 requested the "QAD File Relating to Plaintiff's Allegations: The complete Quality Assurance Division ("QAD") file relating to the allegations made by Adrian Schoolcraft regarding the manipulation of crime statistics, falsification of crime reports, tampering with crime evidence; and/or downgrading of crime reports at the 81st Precinct." Further, plaintiffs Interrogatory Request No. 8 requested that City Defendants "Identify any QAD investigations that were launched in response to the allegations of Adrian Schoolcraft." City Defendants, in a response dated September 27, 2011, objected to plaintiff's requests on several grounds including, but, not limited, to relevance and further indicated that defendants would construe and limit plaintiff's request as seeking documents related to the QAD investigation into the 81' Precinct Crime Reporting following plaintiffs 2009 general allegations pertaining to improper crime reporting in the 81' Precinct. City Defendants further stated that defendants would only produce documents responsive to plaintiff's request "pursuant to the terms of a so -ordered Protective Order, a proposed copy of which has previously been produced to plaintiffs counsel for review." A Stipulation and Protective Order in this matter was executed by all parties on September 28, 2011. See Stipulation and Protective Order, annexed hereto as Exhibit B. The Stipulation explicitly provided that "Confidential Materials" Would refer to, inter alia, "files maintained by the NYPD's Quality Assurance Division ("QAD") with respect to any investigation, including but not limited to plaintiff" Further, the Stipulation restricted disclosure of the confidential material to "plaintiffs and/or Co -Defendants' attorneys or a person(s) specifically employed by plaintiffs and/or Co -Defendants' attorneys only if necessary for the preparation or presentation of plaintiff's and/or Co -Defendants case in this action." Icl. at 114.2 Pursuant to the Stipulation, on October 7, 2011, City Defendants produced the 95 -page QAD Investigation into the 81s` Precinct, bearing Bates Nos. 1)000508 through D000602, under a cover letter which clearly stated that the documents were being produced pursuant to the terms of the Stipulation and Protective Order in effect in this matter," See Cover Letter to October 7, 2011 Production, dated October 7, 2011, annexed hereto as Exhibit C. Importantly, neither plaintiff nor co-defendants objected to the confidentiality designation of the QAD materials prior to executing the Stipulation and Protective Order. Furthermore, neither party challenged the confidentiality of the documents after they were produced by City Defendants. Nevertheless, in a Village Voice article dated March 7, 2012, reporter Graham Rayman indicated that he was in possession of the 95 -page QAD Report. Furthermore, only two days later on March 9, 2012, a New York Times article reporting on the Village Voice article states 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 2 On or about October 12, 2011, Brian Lee, Esq., counsel for defendant Isak Isakov, sent the executed Stipulation and Protective Order directly to Your Honor for endorsement and filing. However, counsel was directed to instead file the Stipulation with the Court via juderneritsfinysd.usc.c.girts.goy. The undersigned, however, was recently informed that the Stipulation was not submitted W the Orders and Judgments Division of the Court. Accordingly, the undersigned submitted it to orders and iudgments@nysd.uscourts.gov on March 9, 2012, after learning of the media leak and the fact that the Stipulation had not been previously endorsed by the Court. Honorable Robert W. Sweet Schoolcraft v. The City of New York, et al. March 12, 2012 Page 3 an article this week."3,4 (emphasis added). City Defendants find it telling that this document remained confidential within NYPD custody for nearly two years, however, only months after disclosure to plaintiff and co-defendants, it has now been published.5 The disclosure of confidential documents is extremely important in this matter, since plaintiff continues to seek confidential materials herein. Most recently, on or about February 16, 2012, plaintiff served City Defendants with a Second Request for Documents from Defendant,City of New York!' These requests include, inter aria, demands for the IAB Reports and Files of non-parties to this action, Investigative Reports froni other Borough Investigations Units, "Confidential Performance Profiles" of the defendants named herein, and communications between Raymond Kelly and Paul Browne. The sought-after documents implicate the confidentiality of both non-parties to this action and the individually named defendants, as well as the law enforcement and/or deliberative process privileges. As it stands, defendants cannot in good conscience continue to produce confidential documents in this matter, knowing that the last, documents produced under the Stipulation and Protective Order were published on the front page of the Village Voice. Absent assurances that both the parties and attorneys in this litigation were not the source of the leak, City Defendants have no confidence that the confidentiality of our documents will he maintained, including the confidential and sensitive documents expected to be produced in April. Therefore, City Defendants respectfully request that the Court order the parties herein to swear/affirm that they did not provide the QAD report to the Village Voice newspaper, and further, that they have no knowledge of the individual who disclosed the report. City defendants arse respectfully request that their obligation to respond to plaintiff's Second Request for Documents be held in abeyance pending receipt of the requested affidavits. I thank the Court for its consideration of this request. Respectfully submitted, Suzanna ublicker Assistant Corporation Counsel Telling the Truth Like Crazy, N.Y. Times, Jim Dwyer, March 9, 2012, 11l111;11WW.W.,.1Vtimes.com/2012/03109/nyregism/oilicer-sues-c !aiming:7pol ice-reialia tion-for-truth 3 available at telling.html? r=2&cref-nyregion. 4 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. 5 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. 6 A response thereto was to be due on March 18, 2012; however, as the undersigned was only just assigned to the case, plaintiff's counsel Jon Norinsberg consented to an enlargement of time until April 2, 2012 for City Defendants to respond. Honorable Robert W. Sweet Schoolcraft v. The City of New York, et al. March 12, 2012 Page 4 Jon L. Norinsberg (By Fax 212-406-6890) cc: Attorney for Plaintiff 225 Broadway, Suite 2700 New York, New York 10007 Cohen & Fitch, LLP (By Fax 212-406-6890) Gerald Cohen Joshua Fitch Attorneys for Plaintiff 233 Broadway, Suite 1800 New York, NeW York 10279 - Gregory John Radomisli (By Fax 212-949-7054) MARTIN CLEARWATER & BELL LLP Attorneys for Jamaica Hospital Medical Center 220 East 42nd Street 13th Floor New York, NY 10017 Brian Lee (By Fax 516-352-4952) IVONE, DEVINE & JENSEN, LLP Attorneys for Dr. Isak Isakov 2001 Marcus Avenue, Suite N100 Lake Success, New York 11042 Bruce M. Brady (By Fax 212-248-6815) CALLAN, KOSTER, BRADY & BRENNAN, LLP Attorneys for Lillian Aldana-Bernier 1 Whitehall Street New York, New York 10004 EXHIBIT A New York The NYPD Tapes Confirmed - Village Voice 3/7/12 access NEED STORAGE? Sign up now and get the 2nd month FREEI SELF STORAGE 888-780-5400 The NYPD Tapes Confirmed The report police hid for nearly two years that corroborates a Voice investigation - and vindicates a whistle -blower the NYPD tried to destroy By Graham Rayman published: March 07, 2012 In 2010, The Village Voice produced a five -part series, Photography: Henry Hargreaves, Prop Styling: Sarah Guido the "NYPD Tapes," about a cop who secretly taped his fellow New York Police Department officers. For more than two years, Adrian Schooleraft secretly recorded every roll call at the Kist Precinct in Brooklyn and captured his superiors urging police officers to do two things in order to manipulate the "slats" that the department is under pressure to produce: Officers were told to arrest people who were doing little more than standing on the street, but they were also encouraged to disregard actual victims of serious crimes who wanted to file reports. Arresting bystanders made it look like the department was efficient, while artificially reducing the amount of serious crime made the commander look good. In October 2009, Schoolcraft met with NYPD investigators for three hours and detailed more than a dozen cases of crime reports being manipulated in the district. Three weeks after that meeting-which was supposed to have been kept secret from Schoolcraft's superiors-his precinct commander and a deputy chief ordered Schoolcraft to be dragged from his apartment and forced into the Jamaica Hospital psychiatric ward for six days. 0 4 40 04'04.0.:004L0.40 .4 0;0 !It 0 0 In the wake of our series, NYPD commissioner Raymond Kelly ordered an investigation into Schoolcraft's claims. By June 2010, that investigation produced a report that the department has tried to keep secret for nearly two years. The Voice has obtained that 95 -page report, and it shows that the NYPD confirmed Schoolcraft's allegations. In other words, at the same time that police officials were attacking Schoolcraft's credibility, refusing to pay him, and serving him with administrative charges, the NYPD was sitting on a document that thoroughly vindicated his claims. Investigators went beyond Schoolcraft's specific claims and found many other instances in the Slit Precinct where crime www.villagevoice.com/content/printVersion/3386914/ 1/B New York Th e NYPD Tapes Confirmed - Village Voice 3/7/12 reports were missing, had been misclassified, altered, rejected, or not even entered into the computer system that tracks crime reports. NFU' YORK cIT1 POLICE DEPARTVENT These weren't minor incidents. The victims included a Chinese -food delivery man robbed and beaten bloody, a man robbed at gunpoint,, a cab driver robbed at gunpoint, a woman assaulted and beaten black and blue, a woman beaten by her spouse, and a woman burgled by men who forced their way into her apartment. OCT,ITY ASSURANCE InvisioN INVESTIGATION INTO 81 PRECINCT CRIME REPORTING "When viewed in their totality, a disturbing pattern is prevalent and gives credence to the allegation that crimes are being improperly reported in order to avoid index -crime classifications," investigators concluded. "This trend is indicative of a concerted effort to deliberately underreport crime in the 81st Precinct." NYPD spokesman Paul Browne did not respond to repeated requests for comment. TARLE OP CONTENTS 11.4141.1. ..uf . r.,141. 4,14 . O. . Scre 4. Mit Pi so t 01. . x 010 . WM FM r 1.3 ,ra ,.,.11.1110,11.rutY14,n,.,..1.,,, k1,1141 144...i..1./J 4 11. 1.4, ,h41 1111. .t...,. 1,11..14.11,...1e5 4, ..... . 1.0 t416,..1. ,V1( 41 ,J g. < 01R. KAM' WIRY :4 .1* 117.4.11.. 11, XI . 0 111,10 11. 1- an AIM le 1114.11,1. 11,11,4010011 0. 4. P.M. NM ...el 1 Von NU in; 'As.. * la Z.? . Ma t k, L111.11 .;1.4 The investigation found that crime complaints were changed to reflect misdemeanor rather than felony crimes, which prevented those incidents from being counted in the allimportant crime statistics. In addition, the investigation concluded that "an unwillingness to prepare reports for index crimes exists or existed in the command." Ir. - 41.; Moreover, a significant number of serious index crimes were not entered into the computer tracking system known as OmniForm. "This was more than administrative error," the probe concluded. There was an "atmosphere in the command where index crimes were scrutinized to the point where it became easier to either not take the report at all or to take a report for a lesser, non -index crime," investigators concluded. Precinct Commander Steven Mauriello "failed to meet [his] responsibility." As a result, "an atmosphere was created discouraging members of the command to accurately report index crimes." Details: NYPD Tapes: The Series The NYPD Taoes Part 1 Inside Bed-Stuy's 81st Precinct The NYPD Tapes, Part 2 Bed-Stuy street cops ordered: Turn this place into a ghost town The NYPD Tapper. Part A Detective Comes Forward About Downgraded Sexual Assaults The NYPD Tapes, Part 4. The WhistleBlower, Adrian www,villagevoice.com/content/printVersion/3385914/ Mauriello's lawyer and union representative say he did nothing wrong. Some 45 members of the command were interviewed, and hundreds of documents were examined. The implications of the report are obvious: If the 8ist Precinct was a typical station house, then crime manipulation is more widespread than city officials have admitted. John Eterno, a criminologist at Molloy College and a former NYPD captain, says that what was happening in the 81st 2/B New York The NYPO Tapes Confirmed - Village Voice 3/7/12 Schoolcraft Follow continuing coverage of the NYPD Tapes here at our Runnin' Scared blog. Precinct is no -isolated case. "The pressures on commanders are enormous, to make sure the crime numbers look good," Eterno says. "This is a culture. This is happening in every precinct, every transit district, and every police housing service area. This culture has got to change." As for Mauriello, he's no rogue commander, says Eterno, who has published a book about crime reporting with John Jay College professor Eli Silverman. "Mauriello is no different from any other commander," he says. "This is just a microcosm of what is happening in the entire police department." Indeed, it is clear from Schoolcraft's recordings that Mauriello was responding to pressure emanating from the Brooklyn North borough command and police headquarters for lower crime numbers and higher summons and stop -and -frisk numbers. The seven index crimes-murder, rape, robbery, assault, burglary, grand larceny, and auto theft-are the central public indicators of the city's crime rate and, by extension, its reputation. The crime numbers are also the bedrock in evaluating the Bloomberg administration and critical to attracting tourism and economic development to the city. As a result, Mayor Bloomberg and Kelly have gone to great lengths to insist the crime statistics are accurate. They have publicly downplayed the Schoolcraft allegations and insisted that any "underreporting" is a tiny anomaly. Kelly's aides have also sought to marginalize Schoolcraft-to, in effect, kill the messenger. And the department has succeeded in making his life extremely uncomfortable. Schoolcraft has been suspended without pay for 27 months, he faces department charges, he was placed under surveillance for a time, and the city even blocked his application for unemployment benefits. But the report amounts to a vindication of Schoolcraft's claims, undermines the city's official claims about'the accuracy of the crime statistics, and confirms most of the findings in the "NYPD Tapes" series. "He [Schoolcraft] brought to light a number of different issues related to crime reporting," a police source familiar with the investigation tells the Voice. In the period since Schoolcraft came forward, investigators found similar informal but taboo practices in other precincts, police sources say. Those findings, police sources say, were the reason behind Kelly's unprecedented departmental order in January, which reminded officers of their crime -reporting responsibilities. Kelly never publicly acknowledged the actual reason behind issuing the order and claimed it was "routine." His spokesman, Paul Browne, claimed it had nothing to do with concerns about underreporting of crime. But no one could remember a similar order ever being issued in the past. Based on the findings of this broader examination, the order told cops they had to take crime complaints. They could not send victims to other precincts, discount them because they weren't totally cooperative, reclassify a crime, delay recording a crime, or reject a crime because they didn't think prosecutors would pUrsue a conviction. These are all dodges that have evolved in the era of CompStat, the NYPD's widely copied crime fighting strategy, which ties career promotions to crime numbers, creating a strong incentive for commanders to downgrade reports. www.villagevoice.com/conient/printVersion/3385914/ 3/8 3/7/12 New York The NYPD Tapes Confirmed - Village Voice But Kelly has not issued any overall examination of the accuracy of the city's crime statistics, nor has any outside investigative agency conducted a broader probe. Instead, the police department has pursued a strategy of stonewalling reporters and refusing to release any documents surrounding the Schoolcraft affair. Indeed, the Voice was blocked in its efforts to obtain this report through the New York State Freedom of Information Law. The request was blocked even though at the time, the report had been completed and therefore, should have been released. Moreover, other investigations ordered by Kelly in 2010 appear to be on an indefinite, murky schedule. A three -member panel of former federal prosecutors is more than seven months late in issuing its findings. One of its members passed away in December. All of this suggests that Bloomberg and Kelly are simply trying to delay a full accounting until after the next mayoral election. And other agencies-such as the state attorney general-won't address it either. Schoolcraft alleged that commanders knew he had come forward and used the psychiatric stay to retaliate against him. For more than two years, the NYPD has publicly insisted that was not the case. But the actual internal charges against Precinct Commander Mauriello raise new questions about that piece of the story. Mauriello, in his department charges, is accused of lying when he claimed he didn't know about the investigation into crime reporting in the 8ist Precinct. In fact; Mauriello knew before Schoolcraft was committed, investigators found. In addition, he denied he had seen Schoolcraft's memo book, which contained some of his allegations, when, in fact, he had seen it. Mauriello is also charged with failing to file a report for auto theft, lying about his role in the incident, and falsely denying that he examined the precinct's crime report every day. Schoolcraft, who turned out to be right, now is protected only by his lawsuit against the city-for which he was criticized. In all, 11 of the 13 cases brought to investigators by Schoolcraft were substantiated. Complaints were downgraded in an attempt to avoid index -crime classification, investigators concluded. Reports were never filed. Reports were delayed and rewritten. Victims were ignored and pressured. A 2008 attempted robbery was classified as misdemeanor assault. Schoolcraft had alleged in this instance that a sergeant in the precinct ordered him to downgrade the report, saying, "We can't take another robbery." A 2008 robbery was wrongly classified as a report of lost property. Schoolcraft had given investigators an e-mail from the victim who claimed he had been beaten and robbed of his wallet and cell phone by three men. But the crime complaint was changed to "lost property [because] the victim doesn't feel he was a victim of a crime." Disturbingly, two officers told the victim that because he couldn't identify his attackers, the case would be classified as lost property. That's a direct violation of NYPD policy. None of the precinct officers interviewed in that incident could explain how the report was changed to lost property. The complaint was upgraded to robbery. Two officers were disciplined. The precinct somehoW "lost" the complaint for a 2009 -attempted robbery. Schoolcraft has said in the www.villagevoice.com/content/printVersion/3385914/ 4/8 New York The NYPD Tapes Confirmed - Village Voice 3/7/12 past that he subsequently wrote a new report after the initial one couldn't be found. A precinct sergeant told the victim that he would have to return to the precinct to look at mug shots, a process that would take "several hours." The victim said he had a job event to attend. Later, the complaint disappeared. In addition, the complaint languished for three days-a violation of a requirement that reports be "finalized" within 24 hours. A sergeant is facing department charges over the incident. The precinct commander ordered cops not to take a car theft. Here, the victim ran into several barriers in filing her complaint. First, an officer told her to wait a few days to see if the car reappeared. That advice delayed the investigation for two days. In addition, Schoolcraft had alleged that Mauriello ordered the female officer not to take the complaint. The officer, lost five vacation days as a result of the investigation. In a 2009 incident, an elderly man said he was a burglary victim. When he showed up at the precinct to file a report, a sergeant told him to go to another precinct to file. Again, this is a violation of the NYPD's own policy. It was only after a newspaper article appeared months later that a report was taken. 60 -year -old retired traffic agent made repeated visits to the precinct to get a complaint number for her stolen vehicle from May through June 2009. The investigation showed the report was never entered into the NYPD computer system, preventing it from being counted in the crime statistics. Investigators concluded nothing would have been done if the woman hadn't been a former traffic agent and pressed the issue. ' In another auto theft, the victim got frustrated because she had to wait hours to file her complaint. The report was never entered in the computer system. . When she went to the 81st Precinct, the victim was told she had to go to the 79th Precinct. When she contacted the 79th Precinct, she was told she had to go to the location where the vehicle disappeared and report it to the 81st Precinct. "She waited an inordinate amount of time, her was complaint was never investigated, nor was a complaint report ever generated," investigators concluded. A man walked into the precinct to ask for his car -theft complaint report in June 2009. The report had disappeared, and a new one was made. Schoolcraft claimed that Precinct Commander Mauriello refused to accept the report. A month later, two men were arrested for stealing the car. Only after that did 8ist Precinct cops enter the report. The victim subsequently confirmed that he felt that Mauriello was "interrogating" him and doubted he was telling the truth. Investigators concluded that the report should have been an auto theft, not an "unauthorized use of a vehicle." They also found that Mauriello's account contradicted that of the victim and his cousin and wasn't credible. 'Investigators also recommended charges against a sergeant who told officers on Mauriello's orders Although the remark was not to take robbery reports if victims refused to return to the station house. Mauriello denied issuing the sergeant initially denied ever saying that. on the Schoolcraft recordings, any suchorder. Investigators learned that no report was ever taken for the incident, which led to the sergeant's order. 5/8 www.villagevoice.com/content/printVersion/33859141 3/7/12 New York The NYPD Tapes Confirmed - Village Voice After a woman reported a knifepoint robbery, another precinct sergeant told cops, "If no surveillance pressuring her cameras show her getting robbed, she's going to be locked up." In essence, cops were not to file the complaint. The victim got frustrated, and no report was filed. Investigators concluded that two officers failed to take the report, and the sergeant failed to follow up. All three cops are facing possible charges. As to Schoolcraft's claims that Mauriello and one of his lieutenants repeatedly ordered cops to downgrade index crimes, investigators examined hundreds of complaints and found several dozen misclassified reports. Even so, Mauriello and precinct supervisors still denied there was any extensive manipulation reports. of crime A sergeant and officers told investigators that Mauriello reviewed the previous days' crime reports, but Mauriello denied that. He also denied calling victims back himself, even though the Schoolcraft tapes and a statement by one of Mauriello's lieutenants clearly show that he did. Schoolcraft claimed that index crimes weren't being entered into the NYPD computer system that tracks crime reports citywide. Investigators found, based on a seven -week sample, that was true in 7 percent of cases. Precinct officers did upgrade some complaints, but only at the low rate of one report per week, investigators concluded. Those upgrades were often done more than a month after the incident, rendering it impossible to actually solve the crime. "This represents a severe delay in accurate crime reporting and calls into question the motive for changing the classification" after so much time had passed, investigators wrote. Probers found seven instances where a crime was initially called a felony, changed to a misdemeanor, and then upgraded to a felony again long afterward, Investigators wrote that they found "severe deficiencies in the overall crime -reporting process as a whole." Investigators found 46 crimes in all where something was not done properly, and thus did not make it into the precinct -crime stats. Twenty-five were misclassified, 16 were missing, and five weren't entered into the system. "The investigation revealed the lengths that some members of the command went to in order to avoid index -crime reports;" investigators concluded, going on to describe a "reluCtance" to submit the reports. Since it was Mauriello's ultimate responsibility, investigators cited a "serious failure" in his command. "Because of this failure, an atmosphere was created discouraging members of the command to accurately report index crimes," investigators concluded. In all, five precinct officers, two sergeants, and Mauriello were either disciplined or charged with department infractions. Most of the command structure in the 8ist was transferred. Kelly appointed one of the city's few female African American commanders to replace Mauriello. Deputy Chief Michael Marino, the man who ordered Schoolcraft to be committed, was also transferred. Probers referred two of Schoolcraft's allegations to Internal Affairs: one involving the arrests of people on minor infractions held unnecessarily in the command and released, and the other, three arrests of people who tried to turn guns in to the station house. www.villagevoice,com/conten1/prin1Version/338591 4/ 6/8 3/7/12 New York The NYPD Tapes Confirmed - Village Voice Schoolcraft remains under a kind of indefinite suspension without pay and lives upstate with his father. His federal lawsuit is moving along in a preliminary phase. His lawyer, Jon Norinsberg, says the secret NYPD investigation totally backs Schoolcraft and proves that "crime reports were deliberately manipulated to create an utterly false portrait of crime levels in the precinct." "The fact that the NY PD knew about a report that wholly vindicated Adrian's claims but never released it to the public-much less acknowledged its existence-is disgraceful and a complete betrayal of the trust of the people of New York," Norinsberg says. "Rather than attacking Adrian's credibility, the NYPD should have commended this officer's courage in coming forward-at great risk to himself and his own career-to expose the dishonesty and fraud that was taking place at the 8ist Precinct." Norinsberg says Commissioner Kelly's actions "have been nothing more than window dressing." "He has addressed the problem cosmetically but has done nothing at all to deal with the actual root of the problem: CompStat," he says. "This is the driving force behind the NYPD's obsession with numbers." Norinsberg says his office has been "flooded with e -mails from other officers who have reported downgrading and non -reporting of crime merely to pad their commander's stats." "It is a gross distortion of the truth to suggest that manipulation of crime statistics occurred only in the 81st Precinct," he says. "This is a citywide problem." As for the other man at the center of the story-Mauriello-he is in a sort of limbo himself. He was transferred to Bronx Transit and charged departmentally 18 months ago, but little has happened since then-much to the irritation of his lawyer and union representative. Roy Richter, the president of the Captains Endowment Association, says that despite the broad allegations contained in the report, Mauriello is only charged with obstructing the taking of a single auto -theft report. "It's important to note that Mauriello was not charged in any administrative action related to the broad conclusions that are contained in the report," Richter says. "Prior to the investigation, his command was rated very highly in previous crime -statistics audits. We will challenge the charges against him. We feel he's been wrongly charged." Mauriello is on full duty in the Bronx Transit command as an executive officer. During his time at the 81st Precinct, his command won a coveted unit citation for outstanding performance, and he was promoted. As for the charge that Mauriello misled investigators, Richter says: "He was directed to recall incidents that happened a year or more before. It's difficult for any person or police officer or reporter to describe a timeline of events that happened 12 months previous. There was no misleading. He testified to the best of his memory at the time." Lou La Pietra, Mauriello's lawyer, says his client denies the charges filed against him. "He's a fall guy," La Pietra says. "I don't know why, whether it's being done for political or litigatiOn reasons. But he wants to move forward." Richter and La Pietra are critical of the department delay to bringing the case to trial. "He was served in October 2010, and they haven't done anything more since," La Pietra says. "The guy's been put out to pasture 18 months. I don't know what their bigger agenda is." grEkvman (et villagevoice.com WWW,V Ilagevoice.com/contereprintVersion/3385914/ 7/8 3/7/12 New York The NYPD Tapes Confirmed - Village Voice AlotA :Y. NEW i ill:61*(141'0NT" OK. at 4T.R'EEt' ,-N0414 www.villagevoice.comicontent/printVersion/33859141 8/8 EXHIBIT B UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - ..... x ADRIAN SCHOOLCRAFT, Plaintiff, -against- THE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL MARINO, Tax Id. 873220, Individually and in his Official Capacity, ASSISTANT CHIEF BROOKLYN NORTH PATROL BOROUGH GERALD NELSON, Tax Id. 912370, Individually and in his Official Capacity, DEPUTY INSPECTOR Tax Id. 895117, STEVEN MAURIELLO, Individually and in his Official Capacity, CAPTAIN THEORDORE LAUTERBORN, Tax Id. 897840, Individually and in his Official Capacity, LIEUTENANT JOSEPH GOFF, Tax Id. 894025, Individually and in his Official Capacity, SGT. 2576, Shield No. FREDERICK SAWYER, his Official Capacity, in Individually and SERGEANT KURT DUNCAN, Shield No. 2483, his Official Capacity, in and Individually CHRISTOPHER BROSCHART, LIEUTENANT in his Official Capacity, LIEUTENANT TIMOTHY CAUGHY, Tax Id, 885374, Individually and in his Official Capacity, Tax Id. 915354, Individually and SERGEANT SHANTEL JAMES, Shield No. 3004 and P.O.'s "JOHN DOE" #1-50, Individually and in their Official Capacity (the name John Doe being fictitious, as the true names are presently unknown) (collectively referred to as "NYPD defendants"), JAMAICA HOSPITAL MEDICAL CENTER, DR. ISAK ISAKOV, Individually and in his Official LILIAN ALDANA-BERNIER, Capacity, DR. Individually and in his Official Capacity and MEDICAL CENTER JAMAICA HOSPITAL EMPLOYEE'S "JOHN DOE" # 1-50, Individually and in their Official Capacity (the name John Doe being fictitious, unknown), STIPULATION AND PROTECTIVE ORDER AS TO DOCUMENTS PRODUCED BY CITY DEFENDANTS as the true names are presently Defendants. 10 CV 06005 (RWS) WHEREAS, plaintiff seeks certain documents from defendants the City of New York, and NYPD defendants Deputy Chief Michael Marino, Assistant Chief Gerald Nelson, Deputy Inspector Steven Mauriello, Captain Theordore Lauterbom, Lieutenant Joseph Goff, Sgt. Frederick Sawyer, Sergeant Kurt Duncan, Lieutenant Christopher Broschart, and Sergeant Shantel James, (collectively referred to herein as "City Defendants") in discovery in this action, documents which City Defendants deem confidential, and WHEREAS, City Defendants object to the production of those documents unless appropriate protection for their confidentiality is assured, NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for plaintiff, City Defendants, and Jamaica Hospital Medical Center, Dr. Isak Isakov, and Dr. Lilian Aldana-Bernier (collectively referred to herein as "Co - Defendants") as follows: I. As used herein, "Confidential Materials" shall mean all documents and the information contained therein relating to personnel of the New York City Police Department ("NYPD"), other than plaintiff in this action, except where otherwise specified in subsection (a), including, but not limited to, (a) files maintained by the NYPD's Internal Affairs Bureau ("IAB") and Brooklyn North Investigations Unit ("BNIU") with respect to any investigation into alleged misconduct by any member of the New York City Police Department, including but not limited to plaintiff; (b) files maintained by the NYPD's Quality Assurance Division ("QAD") with respect to any investigation, including but not limited to plaintiff; (c) internal and external Equal Employment Opportunity complaints and any related investigation; (d) personnel files and the information contained therein including, but not limited to, information regarding, promotions, 2 discipline, evaluations; (e) copies of any documents containing information about any actual or potential personnel action taken with respect to personnel of NYPD other than plaintiff in this action, including, but not limited to, copies of investigation files, disciplinary files, Employee Management Division ("EMD") files; (f) any documents identified by City defendants as subject order; and to this order; (g) any documents that the Court directs to be produced subject to this (h) any testimony concerning subsection (a), (b), (c), (d), (e), (f), and (g) and documents and the information contained therein. 2. Documents and information are not Confidential Materials to the extent that they (a) are properly obtained by plaintiff from the City defendants herein, or (b) are otherwise publicly available. 3. Neither plaintiff, plaintiffs attorney, nor the Co -Defendants or their attorneys in this matter shall use the Confidential Materials for any purpose other than for the preparation or presentation of plaintiff's case or defendants' defense in this action. In addition, any party may use the Confidential Materials for cross-examination or impeachment purposes, and Confidential Materials may be used in support of, or opposition to, any summary judgment motions, provided that the Confidential Materials are appropriately redacted for ECF filing, pursuant to the provisions of paragraph 6, infra; 4. Neither plaintiff, plaintiff's attorney, nor the Co -Defendants or their attorneys in this matter shall disclose the Confidential Materials to any person except under the following conditions: a. Disclosure of Confidential Materials, including, but not limited to those files maintained by the NYPD's IAB, ENID, QAD, or Office of Equal Employment Opportunity with respect to any investigation into alleged 3 misconduct, including but not limited to plaintiff, and any EMD, personnel, investigative, and/or disciplinary files and/or materials may be made only to plaintiffs and/or Co -Defendants' attorneys or a person(s) specifically employed by plaintiff's and/or Co -Defendants' attorneys only if necessary to the preparation or presentation of plaintiffs and/or Co Defendants' case in this action. b. Disclosure before trial of Confidential Materials may be made only to an expert who has been retained or specially employed by plaintiffs and/or Co -Defendants attorneys in anticipation of litigation or preparation for this action, to a witness at deposition, or to the Court. c. Before any disclosure is made to a person listed in subparagraph (a) or (b) above (other than to the Court), plaintiff and Co -Defendants shall provide each such person with a copy of this Stipulation and Protective Order, and such person shall consent in writing, in the form annexed hereto as Exhibit A, not to use the Confidential Materials for any purpose other than in connection with the prosecution or defense of this case and not to further disclose the Confidential Materials except in testimony taken in this case, or attached to motions, affidavits or declarations submitted to the Court, which have been redacted for ECF filing pursuant to the provisions of paragraph 6, infra. The signed consent shall be retained by plaintiff's attorney and/or Co -Defendants' attorneys and a copy shall be furnished to City Defendants' attorney within ten (10) days. Deposition testimony concerning any Confidential Materials which 5. transcript of such reveals the contents of such materials shall be deemed confidential, and the bound, with a cover testimony, together with any exhibits referred to therein, shall be separately shall be deemed to page prominently marked "CONFIDENTIAL." Such portion of the transcript be Confidential Materials within the meaning of this Stipulation and Protective 6. Order. If any paper which incorporates any Confidential Materials or reveals the delivered to the Court contents thereof is filed in this Court, those portions of the papers shall be of the enclosed in a sealed envelope bearing the caption of this action, an indication of the nature contents, and the following legend: CONFIDENTIAL This envelope contains documents or information designated confidential pursuant to an order entered by. the United States District Court for the Southern District of New York in the above -captioned action. This envelope shall not be opened or unsealed without the express direction of a judge of this Court, and its contents shall not be displayed or revealed except as the Court may order. This envelope and its contents shall at all times be maintained separate and apart from the publicly available files of this case. 7. Within thirty (30) days after the termination of this case, including any appeals, the Confidential Materials, including all copies, notes, and other materials containing or referring to information derived therefrom, shall be returned to City defendants' attorney or, upon their written consent, destroyed, and all persons who possessed such materials shall verify their return or destruction by affidavit or certification furnished to City defendants' attorney; plaintiffs and Co -Defendants' attorneys shall represent that all Confidential Materials have been returned; provided that notes and other materials that are or contain the work product of 5 remain subject to the attorneys may be retained. However, any such retained work product shall Co -Defendants' provisions in this Order and shall not be used by plaintiff's counsel and/or and the counsel In any other case against the City of New York, it agencies or its employees same shall be verified to City defendants' attorney. 8. Nothing In this Stipulation and Protective Order shall prevent plaintiff's counsel from making an application to the Court is the matter of Stinson. et eL v. City of New subject to York. at al, 10-Civ.-4228 (RWS), for disclosure of materials that would otherwise be this Protective Order. 9. Nothing In this Stipulation end Protective Order shall be construed to limit City defendants' use of the Confidential Materials In any manner. 10. Facsimile signatures herein shall be consider as original signatures. September 28, 2011 New York, New York Dated: :D COHEN & PI JON L. NORMS 0 (N)2133) Gerald Ccdron Joshua Pitch Attorney fbt Plaintiff 225 Broadway, Sok 2700 14) 13) or Plaintiff New Yolk NY 10007 (212) 791.5396 Norlinbag@itol.coni 225 Broadway, Suite 2700 New York, NY 10007 (212) 374-9115 pohen@cohenfitch.com jfitelecohenfitch.com k /1//(..% J. Itadomisil (0UR2670) MARTIN, CLEARWATER Greg Donne A. Canfield (DC243 Assistant Corporation Counsel MICHAEL, CARDOZO Office Oder Corporation Counsel of the City of New York Attorney for CITY DEPENDANTS 100 Church Street, Room 2.124 & MILL, LAJP Attorneys ibr Defendant JAMAICA HOSPITAL MEDICAL CENTER 220 East 42nd Street New York, NY 10007 (212) 697.3122 **York, NY 10017 radornameblinv.com (212) 7884703 deanfieleIrw,nye.gav 6 New York NY 10004-2140 . Lee (BL9495) IVONE. DEVINE & JENSEN, LLP Attorneys for Defendant 15AX ISAKOV, M.D. 2001 Menus Avenue, Suite N100 Lake Success, New York 11042 (212)241-0113 bbretty@skbblsw.com brienlee814Psw.00rn Brady (B 6) CALLAN, KOSTER, BRADY & BRENNAN, LLP B Massy, !kr Wood= DL ULAN ALDANA-BERNIER 1 WklIehs11 Stew (516)3264400 SO ORDERED: 7 EXHIBIT C THE CITY OF NEW YORK LAW DEPARTMENT MICHAEL A. CARDOZO 100 CHURCH STREET NEW YORK, NY 10007 Corporation Counsel DONNA A. CANFIELD phone: (212) 788-8703 fax: (212) 788-8877 mobile: (917) 573.3480 email. dcanfiel@law nycsov October 7, 2011 VIA HAND DELIVERY Jon L. Norinsberg 225 Broadway, Suite 2700 New York, New York 10007 Gerald Cohen Joshua Fitch COHEN & FITCH, LLP 225 Broadway, Suite 2700 New York, New York 10007 Re: Schoolcraft v. The City of New York, et al. Civil Action Number: 10 CV 6005 Dear Counsel: Please find enclosed for service upon you, documents Bates stamped D000001 D001457 produced pursuant to the terms of the Stipulation and Protective Order in effect in this matter. Included in this production are the following: Plaintiffs Command Personnel Folder Plaintiff's Employee Management Division ("EMD") File Various Memo book entries - Plaintiff Plaintiff's Psychological Evaluation Section file IAB Interim Report, dated October 7, 2010 Charges and Specs. - Mauriello Charges and Specs - Schoolcraft Marino Command Discipline Internal Affairs Bureau ("IAB") Resumes - Defendants Central Personnel Index ("CPI") - Defendants Property Invoices Memobook - Broschart QAD Report 81 Precinct Defendants' Personnel Files Also included are documents PG000001-PG000703, previously produced. Yours truly, I( Donna A. Canfield Assistant Corporation Counsel dcanfiel@law.nyc.gov c: Gregory John Radomisli MARTIN CLEARWATER & BELL LLP Attorneys for Jamaica Hospital Medical Center 220 East 42nd Street 13th Floor New York, NY 10017 (by hand delivery) Brian Lee NONE, DEVINE & JENSEN, LLP Attorneys for Dr. Isak Isakov 2001 Marcus Avenue, Suite N100 Lake Success, New York 11042 (by First Class Mail) Apr 25 2012 04:22Pm Received COHEN & FITCH LLP 233 BROADWAY. SUITE 1800 NEW YORK, NY 10279 TEL: 212.374.9115 FAX: 212406.2313 FAX FORM DATE: April 25, 2012 TO; Honorable Robert W. Sweet, United States District Judge FIRM OR COMPANY: Cc: Southern District of New York Suzanne Publicker, Esq. (212-788-9776) Assistant Corporation Counsel Gregory John Radomisli (212-949-7054) Martin Clearwater & Bell LLP 220 East 42"4 Street, 13th Floor New York, NY 10017 Brian Lee (516-352-4952) Ivone, Devine & Jensen LLP 2001 Marcus Avenue, Suite N100 Lake Success, NY 11042 Bruce M. Brady (212-248-6815) Callan, Koster, Brady & Brennen LLP 1 Whitehall Street New York, NY 10004 FROM: Cohen & Fitch LIP PAGES (including this page), _6 If you did not receive all of the pages, please contact the sender as soon as possible. MESSAGE: Schooleraft v.. City of New York, et al 10 CV 6005 (RWS) NOTE /0 FAX OPIMATTI: The information contained in !his Facsimile message is legally privileged end confidential information intended only for the use of the individual or entity named above. if the reader of this message Is not the Intended recipient you are hereby notified that any dissemination, distribution or copying of this facsimile is strictly prohibited. if you receive this Facsimile In error, please immediately notify us by telephone end return the original message to us at the address above via the United states Pastel service, Thank you. Apr 25 2012 04:23pm Received. COHEN & FITCH LLP 233 BROADWAY, SUITE 1800 NEw Yoax, NY 10279 TEL: 212.374.9115 Mx: 212,406.2313 April 25, 2012 81 FACSIMILE 212-805-7925 Honorable Robert W, Sweet United States District Judge Southern District of New York 500 Pearl Street New York, New York 10007 Re: Sehookraft v. City of New York, et at. 10 CV 6005 (RWS) Your Honor: I am co counsel for plaintiff in the above -referenced matter. I write now to respectfully request that Your Honor grant plaintiff leave to amend the complaint to add a First Amendment retaliation claim under 42 U.S.C. § 1983 based on the discovery that has been produced thus far. Additionally; it is also respectfully requested that plaintiff be permitted to substitute Lieutenant William Gough for Lieutenant Joseph Goff who was incorrectly named in the original complaint. The request to substitute Lt. Gough as a defendant is made with the consent of all parties and the request regarding the First Amendment claim is made with the consent of all parties except the City defendants. No prior requests to amend have been made. Since the time of filing the first amended complaint in this action, the parties have conducted substantial document discovery. Specifically, the parties have exchanged over three thousand (3,000) documents as well as thousands of hours of audio recordings. Amongst the documents exchanged by the City defendants was the UP 49 (Unusual Occurrence Report) from. October 31, 2009, which indicated that a Lt, William Gough was present during plaintiff's home invasion whose name bore a phonetic resemblance to the currently named defendant Lt. Joseph Goff. After verifying this information with the plaintiff, it was confirmed that because of the similarity in names Lt. Joseph Goff had erroneously been named instead of the correct Lt. William Gough. Accordingly, the plaintiff respectfully requests leave to amend the complaint to correct this error and add the appropriate defendant. Additionally, the City defendants have also produced the documents from the investigation conducted by the Quality Assurance Division (QAD) of the New York City Police Department, which had performed an investigation into the allegations made by plaintiff Adrian Schoolcraft while still an active duty police officer at the 8 Precinct. Specifically, prior to the Received Apr 25 2012 04:23pm events of October 31, 2009, Adrian Scboolcraft had made numerous complaints to supervisory personnel within the department and to outside investigative agencies regarding the enforcement and establishment of an arrest and summons quota. Additionally, he also made specific allegations that commanding officers had manipulated crime statistics and civilian complaints so as to avoid classification as index crimes.' These allegations included, but were not limited to, the failure to take reports of civilian complaints, destruction of civilian complaints, downgrading complaints that would have been categorized as index crimes to lesser offenses and discouraging civilians from making or pursuing criminal complaints. Plaintiff believed, and still does, that this under -reporting was occurring in order to avoid the statistical categorization of these complaints as "major crimes" for purposes of reporting crime statistics to the public - i.e. to make it appear to the public at large that a certain manner of policing was affectively reducing crime when in fact the numbers being provided to the public were being falsified. Further, these allegations that plaintiff had made were eventually substantiated by the QAD investigative findings, which found that civilian complaints were in fact being falsified by the NYPD. As such, following the disclosure of the QAD findings, the merit and validity of plaintiff's First Amendment retaliation claim became clear - namely, that the events of October 31, 2009 and the subsequent campaign of harassment was done directly in retaliation against plaintiff because he had exercised his First Amendment right to speak out regarding this breach of the public trust and fraud on the public at large. Accordingly, plaintiff now makes the instant request to add a First Amendment Claim to the complaint. The Plaintiff Has Clear Grounds to Assert a First Amendment Retaliation Claim Based on the QAD Findings Under the law of this Circuit, a First Amendment retaliation claim is widely recognized when an individual suffers a constitutional injury in retaliation for exercising his rights under the First Amendment. See Skeban v. Village of Mamaroneck, 465 F3d 96, 107 (2d Cir. 2006)(`"[T]he First Amendment nonetheless prohibits it [generally, subject to certain defenses,] from punishing its employees in retaliation for the content of their speech on matters of public importance.'"). In order to establish a First Amendment retaliation claim the plaintiff must show he engaged in protected speech and that the adverse employment action that resulted was motivated by its utterance. See A. ("In order to establish a First Amendment retaliation claim, plaintiffs must prove that: (1) they engaged in constitutionally protected speech because they spoke as citizens on a matter of public concern; (2) they suffered an adverse employment action; and (3) the speech was a 'motivating factor' in the adverse employment decision."). Further, "adverse employment action" is not strictly construed under the First Amendment and only requires that the action taken be sufficient to discourage potential speakers from exercising similar rights in the future. See Nixon v. Blumenthal, 409 Fed.Appx. 391, *1 (2d Cir. 2010)("In the First Amendment context, plaintiffs need not demonstrate a material change in employment terms or conditions...rather, plaintiffs need only show that the retaliatory conduct in question 'would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.'"). Additionally, in order for a public employee - namely, a police officer - to establish entitlement to First Amendment protection, he or she must show that they engaged Index crimes consist of the seven major crime classifications: Murder, Rape, Robbery, Burglary, Felony Assault, Grand Larceny and Grand Larceny Auto. ' Received: Apr 25 2012 04:23pm in speech as a "citizen" regarding matters of public concern. See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008)("Whether public employee speech is protected from retaliation under the First Amendment entails two inquiries: (1) "'whether the employee spoke as a citizen on a matter of public concern" and, if so, (2) "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.") In the present case, plaintiff can clearly satisfy every element of this claim. Plaintiff Adrian Schoolcraft spent years documenting corruption within the New York City Police Department. Specifically, he recorded superior officers instructing subordinates to make arrests and issue summonses pursuant to an internally established quota and in many instances either explicitly or implicitly instructing officers to disregard probable or reasonable cause in order to meet these requirements. Additionally, and perhaps even more importantly, plaintiff documented repeated instances of widespread fraud regarding civilian complaints within 81st Precinct - namely, officers' failure to take civilian complaint reports, their discouragement of civilians who desired to make reports arid their misclassification of crimes contained in the reports. Further, in an attempt to expose this corruption clearly involving matters of public concern, plaintiff spoke to supervisors, made formal reports that he attempted to transmit to Police Department hierarchy and made written complaints to investigative units such as the Internal Affairs Department and Quality Assurance Division of the NYPD. As a result of this speech, NYPD officials modified the conditions of his employment and eventually entered his home and had him involuntarily committed to a psychiatric ward at Jamaica Hospital for six (6) days. Thereafter, defendants continued to retaliate against him for his speech regarding the departmental corruption by traveling hundreds of miles to his home in upstate New York in a continuing campaign of retaliation and intimidation. Accordingly, plaintiff can unquestionably establish the requisite elements for pleading and proving a First Amendment retaliation claim in this case. Garcetti is Entirely Inapplicable to the Speech Alleged in This Matter In response to plaintiff's request for consent to amend the complaint in order to add this claim, the City defendants have predictably relied on Garcetti v. Ceballos, 547 U.S. 410 (2006) in opposing plaintiff's proposed amendment on the grounds of futility. This position, however, ignores the underlying basis of that holding - namely, that First Amendment protection is only lost when the speech is required as a function of the employee's job. See id. at 421 ("We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.")(emphasis added). Conversely, if the speech is not required by the employee's job duties, it is protected, and this limitation of Garcetti has been widely recognized in this Circuit. See Sassi v. Lou -Gould, 2007 WL 635579. '3 (S.D.N.Y. 2007)(Unlike the plaintiff is Garcetti, whose job it was to write the communications which he claimed constituted protected speech, Chief Sassi had no such duty to write public letters to the City Council "as a resident taxpayer." Chief Sassi's letters, which harshly criticized the City Council for its funding of the police department, were very similar to the letter in Pickering.)(emphasis added). In fact Your Honor has even recognized this distinction in cases involving facts similar to the instant case. See McAvcy v. Prange -Ulster Boces, 2009 WL Received: Apr 25 2012 04:23pm 2744745, *5 (S.D.N.Y. 2009)(RSW)("McAvey's official job duties cannot be said to include `scrutinize[ing) her supervisors for fraud -essentially acting as a supervisor of her supervisors -let alone reporting] them to external investigators.'"). Further. the mere fact that the speech is related to an individual's job does not lift the umbrella of First Amendment protection. See Jackson v. Jimino, 506 F.Supp.2d 105, 109 (N.D.N.Y. 2007)("'If we were to adopt Defendants' argument, we would inextricably have find that Garcetti dictates a bright -line rule -an all or nothing determination -on an employee's speech even if it tangentially concerns the official's employment. We find that Garcetti does not stand for that proposition.'")(emphasis added). In the present matter, plaintiffs speech undoubtedly involved matters of public concern namely, the falsification of civilian complaints and the widespread institution of an arrest and summons quota, which implicitly and explicitly instructed officers to disregard probable cause. 5 ee akehan 465 F.3d at 106 ("[D]efendants do not seriously contest that plaintiffs have satisfied the first two elements of their First Amendment case. nor could they. Plaintiffs' speech plainly concerned issues of public concern: misfeasance within the police department and allegations of an ongoing cover-up and an attempt to silence those who spoke out against it.")(emphasis added). As previously stated, plaintiff's speech concerned a system that required and/or influenced officers to disregard the law and violate individuals rights in order to meet departmental quota requirements. Moreover, plaintiff was speaking out regarding the widespread manipulation, tampering and falsification of civilian complaints being made by the public at large. Additionally, it cannot be argued with any level of credibility that addressing these matters was part of his job duties, and as such, he is entitled him to First Amendment protection. See Jackler v. Byrne, 658 F.3d 225, 241- 42 (2d Ci.r. 2011): []t is clear that the First Amendment protects the rights of a citizen to refuse to retract a report to the police that he believes is true, to refuse to make a statement that he believes is false, and to refuse to engage in unlawful conduct by filing a false report with the police. We conclude that Jackler's refusal to comply with orders to retract his truthful Report and file one that was false has a clear civilian analogue and that Jackler was not simply doing his job in refusing to obey those orders from the department's top administrative officers and the chief of police. Id. (emphasis added). Finally, the nature of plaintiff's speech not only was addressing matters of public concern, but acts that literally constituted a fraud on the public - namely, that citizens were being led to believe their complaints were actually being taken and being reported accurately. Under these circumstances, it is clear that plaintiffs allegations are abundantly sufficient to sustain a First Amendment retaliation claim. See Anderson v. State of New York, Office of Court Admin. of Unified, 614 F.Supp.2d 404, 428 (S.D.N.Y. 2009): This case is patently distinguishable from Garcetti. Whereas the prosecutor in Garcetti spoke out about a single case pending in his office, Anderson spoke out about systemic problems at the DDC, thereby making her speech protected. Where a public employee's speech concerns a government agency's breach of the public trust. as it does here, the speech relates to more than a mere personal grievance and therefore falls outside Gametes restrictions. Apr 25 2012 04,24pm Received. (14,)(emphasis). Accordingly, since leave to amend pleadings is freely granted, and defendants cannot possibly sustain their burden of proving the futility of adding this claim, plaintiff respectfully requests that Your Honor issue an Order permitting plaintiff to amend the Complaint accordingly. Thank you for your consideration of this request. Very truly yours, I Cc: VIA FAX Suxanna Publicker, Esq. Assistant Corporation Counsel The City of New York Law Department 100 Church Street New York, New York 10007 Gregory John Radomisli Martin Clearwater & Bell LLP 220 East 42'd Street, 13th Floor New York, NY 10017 Brian Lee Ivone, Devine & Jensen LLP 2001 Marcus Avenue, Suite N100 Lake Success, NY 11042 Bruce M. Brady Callan, Koster, Brady & Brennen LLP 1 Whitehall Street New York, NY 10004 Joshua P itch jfitch@co leafiteheorn Case 1:10-cv-06005-RWS Document 134 FilOtit/lac.,4ag41 1 . I * r - L '.* %. . FILED I e- vc I -.1 - . Rite 71iir NrY . 1..07i . 4. a. NI .4%4c r-,1"` r .1: 11 t' i .._ ...... W..... - '' .' it 0 ....--------_______-..--------ir-to 1 riE CITY OF NEW YORK Susanna' rublither .4 lintel LAW DEPARTMENT ioi)( III RI II 'f I RI I NI.11 1 t )RR, N'1 rhAW ttaf 1 !ono" "ss-!Itij .'; I, IntttlIt l' trch I. 2013 HAND DELIVERY !tomcats's: Robert W. Sweet United States District Judge Southern District of New York 500 Pearl Street New, N'o't. Nev, York 10007 BY Re: !..iehoolcraft . ,t,AIED$ -1 he ('it.)...ot tie York, et al. 10 -CV -6005 ( RWS Your I lonor: am the Assistant Corporation Counsel in the °trice of Michael . Cardoio, Corporation Counsel of the C.v.', of New York. assigned to represent the Cit Defendants abo e -referenced oi plaintiff's liiSCO'berY djiciencies 0....iendams wine regarding inal:er. ! v.a of background, Cit Defendants served plaintiff with then- 1. irst Set of Inteaciinaories and Document Requests on or about December 5. 2011, to which plainfifI ateen% roponded on %twit 0. 2012. Cit> Dendants soled a second set of Docurneat Redclests .on or 1,out A4um 20, 2012, to which plaintiff again belatedly responded on October 74. 7.01'.. City Defendants outlined the deficiencies to plaintiff's rcTonses to these requests in a !ter dated i)k.ieeniber 1(4. 2012 ianneNed hereto as I. shibit Ai, and have further followed up wit. elation!' c Loiinsel by letter dated 1. chroary 15. 1,1110e Nted hereto as Exhibit 13). Plaintiff t I ha., not rest) .ft.kid in ari.\ manner City Djendants therefete resp,:etfull reque!-:t that the Cour, compel plaintiff to respond to the enumerated requests below Defendants are not able to move forward with the second dog: melts ore witched ---" - b certain as Cav 4 of plaintiff's dcpc,sition until th:sc a date . ;1::tatCinv to a te%tftp. of the C1%11 Doe-ket Sheet. Lieutenant IA:truant (lough. :esteem Kasai W. O'Il.ort., Ser,..:ant South,: W,Istan. Lit.tnellawn I honhas I Iaot and t.".apt.ttn I nohilly I r.nhor harte not ) bean 'tree ells, I prOi:- .s. and rt Itit're:kirc ant rartto, 10 On, attion l'It-naani to I. !;..,c.1) 3. and 34, bvt:Au.Sc poAmlil I ;;used o vilho icpunil. ft, seek an :alirgwatent tit tick: ill x to respond t ithin ZO dins ol ..:mile of 4%4k:41(141th' flt:(of ftr :Attests. and objections to th,,A: melee. ha % e 5t. eats gas 1'. ):.% Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 2 of 21 A. Financial Expenses Incurred By Plaintiff City Defendants demanded proof of all financial expenses incurred by plaintiff as a result of the allegedly unlawful conduct of defendants in this matter.' Plaintiff responded by stating that the demand "is vague. ambiguous. overbroad and unduly. burdensome, to the extent thin it seeks documents that are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. and to the extent that it calls tier the production of material not within plaintiff's possession. custody or control, and that is more readily obtained from another source. Plaintiff is alleging economic damages in this matter, and as such, plaintiff's contention that the document request is "neither relevant nor reasonably calculated to lead to the discovery. tit admissible esidence- is utterly incomprehensible. Even to the extent that plaintiff alleges that evidence of plaintiff's financial damages is more readily available from another source, plaintiff has failed to identify. the soured.) from whom City. Defendants may request such evidence. despite requests from City Defendants to so identify the sourcets) Plaintiff has similarly refused to provide evidence of his efforts to mitigate damages by attempting to secure other employment.' proof of the $7.185.00 medical hill plaintiff claims he was issued as a result of his confinement.' and proof of purchase of the recording devices used by plaintiff. Giver :he ref.,. nitre of plaintiff's economic losses and any attempts to mitigate those losses to this litigation. City Defendants respectfully request that the Court order plaintiff to produce rcsoonsive information by a date certain. R. Documents Regarding Allegations -of illegality Regarding Telly: Officers Frank Pallestro and Adbyl Polanco Plaintiff alleged in his Second Amended Complaint that non-party Police Officers Addy I Polanco and hank Pallestro have evidence that the IAB failed to keep their complaints ..st cart uptiurr and illegality confidential. which plaintiff believe supports his claims in this action. City Defendants therefore demanded any documents in plaintiffs possession that support these alle:,:ations.' Plaintiff responded in part that "lthe request; demands discloSure of information rinv::or communications that are protected bs the attorney -client or work -product priv Relics. or which constitute material prepared for litigation purposes.- In response, City Defendant,. Now:sled a priv ilege log for those documents plaintiff believes -are protected 1.), the attorney diem and'or work -product privileges, which plaintiff has thus far failed to provide. Plaintiff further objected to produce responsive documents concerning Frank Pallestro that are in plaintiff's possession. without first obtaining an Attorneys Eyes Only Stipulation exo,:nucti his the panics and ordered h y the Court. City Defendants do not believe any Attorneys' Fy--.:s Only. Stipulation is required when none was required for plaintiff to produce similar information pertaining to Adhyl Polanco. further. plaintiffs claim that evidence regarding Frank Palstro cannot be produced absent such a stipulation because Pallestro tears retaliation. is meritless in light of the fact that plaintiff has already identified Frank Pallestro as hating tip.,, I Set ot Doeumeut Requests Document Request Numler 9. 5. I°' set of Document Requests - Document Request Number 13. v.,: ' Set of Document Requests - Document Request Number 6 ; -" Set of Document Requests Document Request Number .1 1.1 2" Set o, Document Requests - Document Request Number I. , 2 Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 3 of 21 provided information to IA1.3 regarding "allegations of illegality.- and more importantly, Frank Paiiestro himself has given numerous interviews to media sources including the New York Daily News on these matters.' Accordingly City Defendants respectfully request that the Court order plaintiff to provide all evidence in his possession regarding Police Officers Adhyl Pylons° and Frank Pallestru. C. Messages and Communications Received Through www.schoolcraftiustice.com Through the course of discovery-, City Defendants learned that plaintiff and his counsel operated a Website with the CR.I. of wow selloolgtiftuaise soft. which asked members of the NYPD to provide intOrmat ion for plaintiff to use in his litigation. City Defendants demanded that plaintiff produce messages and communications received through www..sehoolcrAinsticesom. including the names. contact information. and IP addresses of all respondents.' Plaintiff claimed that the request implicated that "disclosure of intOrmation and'or communications that are protected by the attorney -client or work -product privileges, or which constitute material prepared for litigation purposes.- So, though plaintiff provided some response to .ais request. in doing so. plaintiff redacted the names, contact. intOrmation. and IP addresses of all respondents. After City Defendants challenged the assertion of prix ilege, b' 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., cli;nit relationship.- the website was taken down.'; It is clear from counsels' website disclaimer the there is attorney -client no relationship with regard to any responses to the www.schooleraftiustice.com website and that an claim of privilege would not he asserted in pod faith. Even if there tiers a relationship. plaintiff has refused to provide a Fit liege log reflecting the information plaintiff contends is protected by the attorney -client and'or workpitidutit privileges, which is required under the oval Rules to be furnished at the time the o-.iection is asserted. See Local Rule 26.2a by Further. as Cie names, contact information, and IP addresses of all respondents is inlOrmation that was not prepared fear litigation purposes. h cannot be considered attorney work -product. Additionally. to the ement that plaintiff intends to rely on statements posted to the website in the furtherance of their litigation, defendants are entitled to learn the identities of the bulb ideals providing inl'ormation, and gather their contact information f to estivate their claims and'or facilitate the service of subpoenas. Accordingly. City Defendants request that the Court demand plaintiff to produce the subject messages and coinmunication received through www.sehooleraftjwitive,eom, inclu ding the un-redacted names. contact infOrmation. and IP addresses of all respondents. A .. \...n. :111VIK POW.:. SY, S.14,. vicLuakiii-ut teame-Jrt lc le- .1!14411 1.1 cant !Icy, 'a pA1.7 1% 2" Set of Document Requests Document Request tomb. r I L'N `<aer:palcsisp-repajts-aftv-Ickorruitti,!n-i,..'iid 2 '1 he intimation contained on this website is for general information purposes lull!, Nothing on this ua assov.ixed paj."... drum.., centime... answer,, cnaaals. or other commun.. mums should he taken as legal advice for al* individual case or situation. ['his information on this website r-, not intended to create, and receipt or vicvv of thi' inh rntiuon does not constitute. an attorney -client relationship. I his is .'borne) nth dome Past performance does not guarantee tour:: results Screenshot of \vv.. SLI1419.1.cralkiJSii.A.* eon. F hibtt Citei,iphasis Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 4 of 21 D. Communications bs' Plaintiff with Media Outlets City Defendants demanded that plaintiff "Ipiroduce any documents, messages, and communications including but not limited to emails. text messages. and letters reflecting any conimunications, interviews, conversations, or meetings plaintiff has had with any media outlet regarding the allegations of the instant lawsuit, including but not limited to bloke. newspapers. radio stations. independent reporters, and magazines.- See 2"d Set of Document Requests Document Request Number 7. Plaintiff objected to that request by stating that it was -Vague. ambiguous. overbroad and unduly burdensome. to the extent that it seeks documents that arc more readily obtained from another source.- City Defendants find this response wholly inappropriate given the number of statements plaintiff has made to the media pertaining to the allegations set forth in the complaint. City Defendants are entitled to discover statements that plaintiff has made concerning his allegations herein irrespective of whether they are also available from another source. Thus, plaintiff's objections to the document request are baseless and accordingly, City Defendants respectfully- request that the Court compel plaintiff to provide documents responsive to these wholly reasonable demands. II. Plaintiff's Failure to Respond to tits Defendants' Re(Iuests for Admissions On December 19, 2_0i2. City Defendants served plaintiff with Requests for Admission rct. Wing the identification of plaintiffs voice on certain recordings. Responses to these requests because plaintiff could not recall whether he had made certain statements on :he !Cent dings when asked about them at his deposition on October 11. 2012. On that sante date. CU!. Defendants also followed up on requests fOr production of documents first made during. are needed plaintiff's deposition. Plaintiff has not responded to any of these requests. despite having had this glai 'rig deficiency pointed out in a letter by City Defendants on Februar\- 15. 20!:',. In view of the foregoing, City Defendants respectfully request that the Court compel plaintiff to respond to City Defendants' Requests for Admissions and document discovery demands made by City Defendants first at plaintiff's deposition, and later by letter dated December 19. 2012 by a date certain. For the reasons stated above. City Defendants respectfully request that the Court order pkinniff to pro life the documents and information listed aboe by a date certain. City Defendants thanks the Court torus time and consideration of this request. Respee illy submitted. 701 Susanna Plibtieker Assistant Corporation Counsel Special Federal Litigation Di% ision cc: Richard Gilbert (By Fax 212-633-1977i Attorney for Phthilill 115 Christopher Street, 2" Floor New York, New York 10014 4 Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 5 of 21 Gregory John Radomisli (By Fax 212-949-7054) MARTIN CLEARWATER & BELL 1,1,1) Attorneys .for Jamaica Hospital Medical (*over 220 East 42nd Street 13th Floor New York, NY 10017 Brian Lec (By Fax 516-352-4952) IVONE, DEVINE. & JENSEN, LLP Attorneys fOr Dr. Isak Isakov 2001 Marcus Avenue, Suite N100 Lake Success, New York 11042 Bruce M. Brady (By Fax 212-248-6815) CALLAN, KOSTER, BRADY & BRENNAN, LLP Attorneys for Lillian ,Adana-ilernier I Whitehall Street New York, New York 10004 Walter Aoysius Kretz , Jr. (By Fax 212-371-6883) SPIFF KRETZ & ABERCROMBIE Attorney for Dv/cot:tont Mauriello 444 Madison Avenue, 30th floor New York, NY 10022 Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 6 of 21 EXHIBIT A Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 7 of 21 THE CITE' OF NEV; YORK CITv N11(.1111:I A. LAW DEPARTMENT tARI))/.0 ,( / ANN ti1 IR It Kilt c!it.ittc:4 ti 1 t(i. trim Ni:w Y( t'K INV" 1 N1.1% ci Oet.ember 19, 20! BY FIRST-CLASS N1 tit. Richard A. Gilbert, Esq. 115 Christopher Street, 2nj Floor New York, New York 10014 Re: S4.:hookT.01 11(e t it% .,1 New York. et . . 10 CV 6005 (RV. S Dear Counsel. City Defendants are aware that yen have recently been retained as cotur.-,ei for plaintiff and write. 1) to address plaintiff detlxrent discover> responses; and 21 regarding plaintiff's deposition. including follow-up requests for documents requested dieing the deposition. Plaintiff's Deficient Discovers Responses ;:omplianec with. Ow tivi'Ll faith i4.)ligoticns of the I okra! Rules or (:ttii Pr..ccdtire. ('it' Defendants hereby idtitttly the endowing delititmetel, with respect to P.atniit:'s R.-sponses t.k) Det;_mt1.41it' irst and Second Set' cif Into lottatoi ies and Requests for Prodtictii.m In tit 1..)ocuments.' 131 Set of Document 14i.ilests -_1)neuntept...RtAuest .\ umber 9: And an) all documents or things. including, hut not limited to authotapes, Yid,:ltapes, or other electronic iecordings. ern:Ws. levers, journals or liar) entries or note, or like documents or things. tit an> form or format, concerning the financial expenses (other than expenses for mental health services) that plaintiff Additional!). pursuant to 1.R ('.1' 33 and bei:ause ola:q:if failed to :tater respond. or seek an enlargement of time in which to respond within 317 days of servIce 01 City Defendants' disco.er,, ' it:quests. an) such objections Iv those requests \Nell: waived c c Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 8 of 21 claims to have incurred to date as a result of the alleged wrongful acts or omissions of the defendants, including but not limited to attorneys' fees. Plaintiff's Response: Plaintiff objects to this request on the grounds that it is vague, ambiguous. overbroad and 'incites burdensome, to the extent that it seeks documents that are neither relevant nor reasonably calculated to lead to the discoVery of admissible evidence, and to the extent that it calls for the production of material not within plaintiff's possession, custody or control, and that is more readily obtained from another source. Defendants' Notice of Deficiency: Plaintiff appears to be alleging economic damages in this matter. As such. City Defendants' Document Request No. 9 clearly requests documentary evidence of such damages. In light of plaintiffs intention to seek compensatory damages. plaintiffs contention that the document request is "neither relevant nor reasonably calculated to lead to the discovery of admissible evidence" is utterly incomprehensible. Thus, kindly provide the requested documents or, in the event that plaintiff is not seeking recompense for financial expenses incurred as a result of the alleged incident, state so. Finally, to the extent that plaintiff alleges that evidence of plaintiirs financial damages is more readily available from another source, identify the soureets) from whom City Defendants may request such evidence. I' Set of Document Requests - Document ReQuest Number 11: All documents concerning plaintiffs attempts to secure other employment and/or to otherwise mitigate his alleged damages since October 31, 2009, including but not limited to all correspondence or other documents plaintiff has sent to or received from any employment agencies, search firms or other outplacement firms, any documents which reflect the dates upon which plaintiff has had contact with such ir;encies or firms, and any documents concerning any job prospects such agencies or firms have made known to plaintiff; all employment advertisements plaintiff has placed or to which plaintiff has responded; and all correspondence, resumes, reference letters or other documents plaintiff has sent to or received from any prospective employers, all documents concerning any offers of employment plaintiff has received from any prospective employers. and all enactments concerning plaintiff's response(s) to any offers of employment he has received. Plaintiff's Response: Plaintiff objects to this request on the grounds that it is vague, ambiguous. overbroad and unduly burdensome, to the extent that it seeks documents that are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, and to the extent that it calls for the production of material not within plaintiff's possession, custody or control, and that is more readily obtained from another source Notwithstanding, and without waiving or in any way limiting these objections or the General Objections, plaintiff states that responsive documents, to the extent that such documents exist and are in the possession of plaintiff. will be provided under separate cover. Defendants' Notice of Deficiency; lo the extent that plaintiff is claiming damages for Jean. of lost income as a result of the alleged wrongful acts or omissions of the defendants, documents concerning plaintiffs attempts to secure other employment and/or to at herwise mitigate his alleged damages since October 31, 2009, are clearly relevant and likely to lead to the discovery of admissible evidence. As such, please produce the documents responsive to this request, including those you indicated would be provided under separate cover. Further, to the extent that plaintiff alleges that the requested documents are more readily available from another source. Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 9 of 21 City Defendants demand that plaintiff identify the source(s) from whom City Defendants may request the documents. 2" Set of Document Requests - Document Request Number 1: Produce any and al! documents and/or recordings which support, or tend to support. in any way whatsoever, any of the allegations set forth in paragraph 352 through 353 of plaintilis Amended Complaint alleging that the lAti tailed to keep complaints of corruptions and illegality confidential in the 42' Precinct regarding allegations of illegality invoking Police Officers Frank Paiiestro and Adhyl Polanco. Plaintiff's Response: Plaintiff objects to this request on the grounds that it is vague. ambiguous. overbroad and unduly burdensome, to the extent that it seeks documents that are neither relevant nor reasonithy calculated to lead to the discovery of admissible evidence. and to the extent that it calls for the production of material not within plaintiff s possession, custody or control. and that is more readily obtained from another source and to the extent that it demands disclosure of information and/or eommilinctilions that are protected by the attorney -client or work -product privileges. or which vonstitut..1 material prepared for litigation purposes Notwithstanding, and witliont waiving or in any way limning these objections or the General Objections. pfaintitf states that responsive documents concerning Adhyl Po!Aneo have previously been provided in plaintiff s responses to defendants first demand for discover;, dated April 9. 2012 Additionally. responsive documents concerning Frank Pallestro arc in plaintiff s possession. but yyii only he disclosed pursuant to an Attorneys Eyes Only Stimulation executed by the parties and ordered by the Court. Defendants' :Notice of. Deficient": Please pros ide a priy ege log for those documents phiintiti believes are protected by the attorney -client and,: work -product ;lieges. Additionally. in response to plaintiff's contention that "documents concerning Adhyl Petals, have previously been provided in plaintiff s responses to defendants first demand lOr discover), dated April 9, 20:2.- please specifically identify the previously produced documents by reference to particular Numbers. With regard to Frank Pallestro, it is unclear why plaintiff posits that an .Attorneys. Eyes Only Stipulation is required when. ostensibly. none was required to produce similar information pertaining to :Why! Polanco Further. plaintiff's claim that evidence regarding Frank Pallestro cannot be produced absent such a stipulation, because he fears Bates retaliation, is meritless in light of the filet that plaintiff has already identified Frank Pallestro as haying provided information to !AR regarding, "allegations of illei!ality." and more importantly, Frank Pallestro himself has given numerous interviews to media sources including the New York sc):si ,151+1 vr-11,11c,iro-rcpoi ...a...L. .1 Daily News lain o s ry.f.ilyie, ,,Im,ption-4210-1es u1/4 -t icki 'JINN I Therefore, kindly provide any and all documents in your possession responsive to this demand and, further, to the extent there are documents responsive to this document request outside of plaintiff's custody And/or control. identify the custodian of such documents. . 1 l 2" Set of Document Requests - Document Request Number 2: Produce any and all messages and communications received through www.schooleraftjusticie corn, including the names, contact information. and II' addresses of all respondents. Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 10 of 21 Plaintiff's Response: Plaintiff objects to this request on the grounds that it is vague, ambiguous. overbroad, and unduly burdensome, and to the extent that it demands 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. Notwithstanding, and without waiving or in any way limiting these objections or the General Objections plaintiff is providing responsive documents redacted accordingly. Defendants' Notice of Deficiency: According to the www.sehyolcraftjkoice.com website." he information contained on this website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails. or other communications should be taken as legal advice for any individual case or situation. I his inhumation on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney client relationship. This is attorney advertising. Past performance does not guarantee future results.'' It is clear from counsels' own statements that there is no attorney -client relationship with regard to any responses to the www.schooicraft.justicecom website. Further, as the names. contact information, and IP addresses of all respondents is information that was not prepared for litigation purposes. it cannot be considered attorney work -product. In any event. please pros ide a privilege log reflecting the infOrmation plaintiff contends is protected by the attorney -client and'or work -product privileges. Additionally, to the extent that plaintiff intends to rely on statements posted to :he website, defendants are entitled to learn the identities of the individuals providing information. and gather their contact information to investigate their claims and o facilitate the service of subpoenas. Accordingly, please produce the subject messages and communications received through wy\ w.,s huolc'a:lull'tifiet,' corn, including the i!'1-ri.do,.;ed num, s. contact information. and IP addresses 0/ all respondent% 2"tict of Document Requests - Document Request Number 3: Produce any and al: evidence of "NYPD misconduct and corruption- that plaintiff collected and documented on or Wore October 31, 200q. If that evidence was destroyed, or is no longer in plaintiff's possession, please identify each item that was destroyed, the approximate dates of destruction, and the manner of its destruction. If that evidence is no longer in plaintiffs possession, please identify each item that is no longer in plaintiff's possession, and the current possessor, holder or recipient of that :tern. Plaintiff's. Response: Plaintiff objects to this request on the grounds that it is vague, ambiguous. overbroad and unduly burdensome, to the extent that it seeks documents that are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, and to the extent that it calls for the production of material not within plaintiff s possession, custody or control, and that is more readily obtained from another source or has already been turned over in discovery Notwithstanding, and without waiving or in any way limiting these objections or the 6erieral Objections. plaintiff identities notes and documents plaintiff had prepared identifying corrupt in the \ NYPD. which were seized by N PD defendants during his seizure on October 11, 2009 Defendants' Notice of Deficiency: to the extent that plaintiff claims that evidence of "NYP1) misconduct and corruption" was seised by NYPD defendants during the incident at plaintiff's apartment on October 31. 2009, please identify with particularity what evidence plaintiff claims was taken from his apartment by the NYPD. Additionally, to the extent that plaintiff alleges that evidence of "NYPD misconduct and corruption" is more readily available from another source, .4 Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 11 of 21 please identify what evidence is available from another source, and the source from which that evidence may be obtained. 2"`; Set of Document Requests - Document Request Number 4: Produce any bills, receipts, cancelled cheeks or other proof of payment, insurance claims, and insurance benefits received. or like documents or things, in any form or format, concerning (a) Olympus D.V.R. (WS-33IW, vaned at 5100.00: lb) iCey Ring Light. valued at $15.00 and (c) Olympus D.V,R. (DS -50). valued at $2.S0.00 as referred in Plaintiff's Notice of Claim. 11 plaintiff is still in possession of any or all of these items. defendants demand the opportunity to inspect these items. Plaintiff's Response: Plaintiff objects to this request un the grounds that it is vague, ambiguous, overbroad and unduly burdensome, to the extent that it seeks documents that are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, and to the extent that it calls for the production of material not within plaintiffs possession, custody or control. and that is more readily obtained from another source. Notwithstanding, and %idiom wait ing or in Lilly wit.. limiting these objections or the Genoa] Objections. plaintiff tins annexed the receipts in h.s possession. Defendants' Notice of Deficiency: In response to this request. plaintiff produced receipts for an Olympus DS -50 I GB Digital \foto: Recorder, valued at S159.91) ($162.94 after shipping and ,taxi and a receipt fill an Olympus WS-331Ni Digital Voice Recorda, %ailed at $113.59 0;123.10 after shipping and tax) Picas,: confirm that the DS -50 described in the Notice of Claim valued at $250 is the same L)S-50 referenced m the receipt annexed to plaintiff's discovery responses, and that the Olympus 5-331M described in the _once of Claim as valued at .1()(1.f.)0 is the same \VS -331M referenced in the receipt annexed t. paintiff's discovery responses. Further. in response plaintiff's averment that this request "calls toi the production of material not within phontifrs possession. custody or control, and that is more readily obtained from another source,plaintiff's identify thcresponsiv e evidence available from another source, as well as the source. Further, if plaintiff is still in possession of any or all of these items, defendants demand the opportunity to inspect these items at a date and time to be agreed upon by counsel. 2°t -Set of Document Requests - Document Request Number 5: Produce any and al! documents or things. including hut not limited to bills. receipts. cancelled checks or other proof of payment. insurance claims. and insurance benefits received, or like documents or things, in any form or format, that support plaintiff's claim that he received a bill in the amount cif $7185.00 for his confinement at fitimacii I lospitill Medical Center beginning on or about October 31. 2009. Plaintiff's Response: Plaintiff objects to this request on the grounds that it is vague, ambiguous, overbroad and unduly burdensome. to the extent that it seeks documents that are neither relevant nor reasonably ca,culated to lead to the discovery of' admissible evidence, and to the extent that it calls for the production of material not within plaintiffs possession, custody or control, and that is more readily obtained from another source Notwithstanding, and without waiving or in an) way limiting these objections or the General Oh:et:lions, plaintiff states that he is not in possession of materials responsive to this request. 5 Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 12 of 21 Defendants' Notice of Deficiency: Please identify whether plaintiff was ever in possession of materials responsive to this request, and further, identify any documents responsive to the request (even if said documents are not in plaintiff's possession) and the custodian of the documents. 2" Set of Document Requests - Document Request Number 6: Produce any and all documents or things, including but not limited to hills, receipts, cancelled checks or other proof of payment, insurance claims, and insurance benefits received, or like documents or things, in any form or format, that support plaintiffs claim that Jamaica hospital Medical Center collected money as a result of the alleged bill that plaintiff received in the amount of $7,185.0 for his confinement at Jamaica I lospital Center beginning on or about October 31, 2009. Plaintiffs Response: Plaintiff objects to this request on the grounds that it is vague. ambiguous. overbroad and unduly burdensome. to the extent that it seeks documents that are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, and to the extent that it calls for the production of material not within plaintiff's possession, custody or control, and that is more readily obtained from another sourer. Notwithstanding, and without waiving or in any yya1 limiting these objections or the General Obieetions. plaintiff states that he is not in possession of materials responsive to this request. Defendants' Notice of Deficiency: Please identify whether plaintiff was ever in possession of materials responsive to this request, and further, identify any documents responsive to the request (even it' said documents are not in plaintiff's possession) and the custodian of the documents 2" Set of Document Requests - Document Request Number 7: Produce any documents, messages, and communications including but not limited to entails, text messages. and letters rellecting any communication, interviews, conversations, or meetings plaintiff has had with any media outlet regarding the allegations of the instant lawsuit, including but not limited to blogs, newspapers. radio stations, independent reporters, and magazines. Plaintiffs Response: Plaintiff objects to this request on the grounds that it is vague. ambiguous, overbroad and unduly burdensome, to the extent that it seeks documents that are more readily obtained from another source. Defendants' Notice of Deficiency: /pen information and belief, plaintiff has made numerous statements to the media pertaining to the allegations set forth in the complaint. Defendants are entitled to discover the statements that plaintiff has made concerning his allegations herein. Thus. plaintiff's objections to the document request are baseless. Accordingly, please provide documents responsive to the demand. Additionally. to the extent that plaintiff claims that documents responsive to this request are "more readily obtained from another source", identify the sourer( s). Please provide the information requested herein no later than January II, 2013. Should plaintiff tail to timely respond. City Defendants will have no choice but to seek judicial intervention. () Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 13 of 21 Plaintiffs DePosition During, the course of plaintiff's deposition, plaintiff indicated on social occasions. that he had no independent recollection of many of the events upon which he was questioned, and instead directed the undersigned to his `'recordings." hor example, when asked about the number of times he was told to conduct a stop, question, and frisk without reasonable suspicion, plaintiff stated "I believe there are multiple recordings of supervisors telling officers to articulate a charge later.- However, when asked to identify the specific recordings supporting his claims, plaintiff was unable to identify or narrow down the recording on which such coma:Nations could be found. ,tice.iex. Schooleraft Deposition Transcript at 80-11-83:6. liken the fact that plaintiff has provided defendants with appro\ int:tic:1y 150 recordings spanning over twenty hours. a continued deposition to review said recordings would not be an efficient use of the parties' time Accordingly. City- Defendants request that p:aintiff agree to re\ icw :he enclosed transcript and. in each instance where plaintiff did not specilicaily identify those recordings supporting Hs claim, identify with particularity the recordings referenced by plaintiff as responsive to 'Zit> Deiendants' questions. Additionally, City Defendants request production of the lOilowing documents first reonested dating plaintiff's deposition on Oetoller 1 I, 20)2 I 2. 3. 4. 5. At flOa \ its pros ided ':,y plaintiff in other lawsuits - I 4.8-15 12. All recordings relating to plaintiff's claims not previously produced1 4-9: A copy of the hard drise of the computer used by plaint:II on or about October 200C/ onto which plaintiff transferred relevant recordings 7 5:24 I{,-?; 2 inspecton o the clothing that plaintiff was \searing on octobo "it 009 Letter sent by plaintiff to Senator aney 27'4: '9-280.1 , 161-7 13: I City Defendants' New Discovery Demands Enclosed please find City De!'enditnts. First Set ..''Requests for Admissions Foci Sineerely yours St. tittiannit !. ti ublieker fyst.iimr: Corporitti.ron Special Federal litigation Division Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 14 of 21 cc Gregory John Radotnisli (By First -Class Mail) MARTIN CLEARWATER & BELL LLP Attorneys for Jamaica hospital Medical Center 220 East 42nd Street 13th Floor Now York, NY 10017 Brian Lee (By First -Class Mail) 1VONF, DEVINE & JENSEN, LLP Attorneys for Dr. halt Isalov 2001 Marcus Avenue, Suite N100 Lake Success, New York 11042 Bruce M. Brady (By First -Class Mail) CALLAN, KOS1'1'..R, BRADY & BRENNAN, Attorneys for Lillian 41dana-Bernier I Whitehall Street New York, New York 10004 Walter Aoysius Krctz , Jr. (By First-0as', Mail) SEIFF KRETZ & ABERCROMBIE Attorney. or Defendant Mauriello 444 Madison Avenue, 30th Floor Nest York, NY 10022 8 Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 15 of 21 EXHIBIT B Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 16 of 21 THE CITY OF NEW YORK Mit %I I X I LAW DEPAI1TMENT X1i1)11)/1) iou 44,,r41.. : it:}(0 PsaI'V. YORK. N1 V. S RI I l'i)11!:. "I /A\\ X 1'1 1 I 01,7 ebruar> 19. 20:3 11Y HAND DELIVERY Richard A. Gilbert, Esq. 115 Christopher Street. 24"' loor New York. Nev, York IO014 Re. Schoo:craft \. I he t ol Nek York, et a! In (;" r7005 RWs) Dear Counsel oblgation: encIt,;;:d please find color copies of the documents prey lot.sl> produced b), City Defendants Joie. Hates No N )1...00003728 through N `0001.4)3286 and \Y( 0)()0257 through N 11.0000327b. 111.: nev, color copies beau Bates Nos. NV0/0007532 through N Yn0007560. City lktendan:s also produce additional documents and recordings from the 1A13 Case r:v as described !,c:ott N C00007567, and N Y000007676, NYC:000075(1i Documents hearing Bates Nos In AcLor;Janec voth d;14...ndunts' continuing discover N Y0;10007691. N1'C00007678-NYC,00007681, NYC00067685, NYC00007689, NYC000071 NYC00007697, NYC00007699-NYC00007734, N C 00007595, \ At"( 00007740. NYC:00007742-N YC00007744, N VC0000774O-N VCO0At777.19, Y( i)0007766, N VC 00007763. N YC0000/760. N 1'(00007752-NYC000077.54. N Y00007773- N YCVi007774, N '00007'68-N YCU000777 N 110.0.)0788S N Y(2000079Q0-N YCO.i0ns,100. Ps Y(!ti, lu07S8o, NYCO0m7S92-NYC00007942. N NA:00008015-N Y(1)0008048. N Y(.0000807S-NYCV000I On Are beam produced sublet:: to the Attorneys' Ives Only Confidentiality Stipulation and Protective Order, endorsed by the Court on October 5. 20 I 2 Documents hearing Bates Nos. NYC00007671. NYC00007o73N Y1'00007680. NYCO0007675, N YC00007o82-N Y0)0007683. N' Y(700(417690, NYCI.)000775t1-N W000077;1. NV(1)0007745, N '00007602, N YC00007-4 ! are being produced subject to the N Yr00007755-N y CO0007759, NYC0000776 I Coiilidentiality Stipulation and Prote,niv,,' Order, endorsed by the Court on (Moho 5. 2612 , 0 if, hi Case 1:10-cv-06005-RWS Document 134 1. : 3. Filed 03/13/13 Page 17 of 21 Document Description lAti CD titled Sgt. KrohIcy PO Rudy lAll Cl) titled ('ail: -Out #09-097 (re: 09.61921) Wed 01.1:3.10 Au to IA13 CI) titled 1.t. liodnell Batts Stamp No. Confidentialits Al-() NYC00007561 NYC00007562 Not Confidential NYC00007563 Not Confidential Contacts, etc. 4. 1A13 Cl) titled Sgt. ()'1 fare IA No. :0-03173 NYC00007564 Not Confidential 5 1A13 CD titled P.O. Schouleralt 11.04 00 0. !Ali CD titled 1.r 1)ron/e1. 1)1.06.10 N YC00007565 N YC00007506 NYC00007567 N Y( '00007568 NYC000075n0 N YC00007570 Not Confidential Not Confidential APO Not Confidential Not Confidentio! Not Confidential N YC00007571 Alt) AF0 13 1A13 CD titled 125.1 YC00007572 NYC00007573 lAll CI) titled 326a N C0000"574 Alt CD titled 159A Ali CI) titled IT Hanlon 7 8 9 10 1! 2. IA13 CD titled Capt. Perez 01.06.10 IA13 CD of Capt. Pere/ IAB CI) titled 31(1a 1'0 Joseph; 311a PO Bonnornette; .312a PO K1telai 3 14a Pt) Martinet.; Pt) PO Brown; 317a Sgt :Alston; 318a a I 5a - lasers,. 3' 9a PO lark I MI CD titled 322a 15, CD Containing Documents from IAB Investigation N109-1973 NYC0007671N Yt: '000082301 AFO AEO A1:0 Confidential Not Conlidenti In accordance with defendants' cont;numg obligation under R.C.i' 261,0, enclosed please a:so lied additional documents responsive to plaintiff's' Firs: Set of Requests tier P;o(1uction of Documents. hearing Bates Nos NYC00007575 !';trough NY(' NYC0000767(i, which are being produced subject to the Attorney:. Eyes On) Confidentiality Stipulation and . Protecnve Order, endorsed 1:1;-, the Court on October 5. 2012. As to the requests for discriiatary intOrrnati9n. p;ease note that incidents reflecting charges of miscondi;et that Jo not involve .111..itatioris of a similar nature to the allegations ,it the mss idol! officers in the coinpl:nnt or 'also statements have been redacted As there were no closed, relevant matters on the Central Personnel Indices for defendants 1.1. Clough. Sgt Wilson, Sgt Wall, 1.1 (Laney. and 1.t. 0'! lace. no CPI documents have been produced for those defendants. Similarly. there were no closed. relevant matters oil the IAB Resumes of defendants Captain Trainor. Sgt Wall. and Sgt. Wilson. therefore, no IA13 Resume documents have been produced for those defendants. Additionally. there were no closed, relevant matters on the CCRII histories of defendants Lt. O'llare, Captain rainor. Sgt. Wilson. and Sgt. Wall, therefore, no CCRI3 documents have been produced for those defendants. This office is continuing to inquire into incidents where an investigation ma:. be ongoing. Once those matters are eased, to the extent that any exists, relevant disciplinurs information will be pros ided. With respect to officer personnel folders. please note that (. ity Please see enclosed for a log ind,eating -.moments that have been withheld on the basis o' privilege. redundancy, and Or relet antic. Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 18 of 21 ions that Ilrd the inc dent h more than Delendants ha% e not produced perlormance e YI:dr"i or Po'mdte 011:dent. Document Description 16 Centra: Personnel index for (captain I irrothy Trainor Bates Stamp No, Confidentiality N Y000007575- Ar..0 \Y('00007576 17 ('OM history for I t William Gough IS, CCRB 1 limo.) for It. f Poops Hanley NYC011007577 APO NYC00007578 ALL 9, 1A13 Resume :or It, William Cough NYC000079- AFO NYC00007580 N (T00007581 NY(:)00075x2 NYCO0607583NYC000075S5 N CO0007586N (200007$ 9O N YC0000760(- 1A13 Resume for IA. rhomas I Ianlev 21 !AB Resume lOr Li 0.! Lire 22 Personnel Folder lOr It. Vs ham Gough 21. Personnel Folder lOr Sgt. Sondra Wilson I 24. Personnel h.lider loi captain I moth 25. Personnel Polder for -1. Robert ( I lain°, 26. Personnel Folder for Lt. 1 Lomas taste) I .1S )0:1 are aware. p1 .uni: I .t t AEO AU) I) NYC00007611'00007'.4 3 N NYC00007644NYC00007n58 NY(200007t,59N YC00107670 fare AFO Aro Al .0 Al.() ses euwii1; ( 4 Defendants. First Set o: Reqnests for Admissions on December :1), 2011. Pursuant to F.ft.C.P..371 and 34, p:ainta was obligated to tespond to said discovery demands withal thirty (311) i..c..ts of errs ee I ikro,ever, Ta date, City Defendants have not receised p'aintills responses Additionall. on December 19. 2012. plaintiff was served with a letter trom City fklenjants null: Ling certain entanciated deficiencies with pkuntifis Responses to City DLicendants" first and Second Sets of tab.7rogatories and Revue -as for Production of Documents Plaintiff has also ;aild to respond to lb c discicry elli.ICS;S :':case sere plamott-s responses to both (.4: Defendants Requests for letter 1) ISInteh 8, :013, Ad:ri.ssion, and City Defendants' December 19. 20:2 dell, otherwise, (it ) Defendants will seek court linen cation. Additionaiy, plasuant to I. R.C.P. 31 and 34, because plaintiff failed to either nowt) respond, or seek an enlargement 01 time in which to respond, to City Defendants' disco' er> demands, waived. objections thereto have now been City Defendants note that there is no indication from the teals Co.i! 1)0e1.0 Sheet whether lieutenant William Cough, Sergeant Robei W. lore. Sergeant Sondra 1\ son, 1.tentenart Thomas Hanley. and Captain Timothy rainor have been served. On numerous occasions. City Defendants have requested both horn plaintiff's former counsel and from present I Filed 03/13/13 Page 19 of 21 Case 1:10-cv-06005-RWS Document 134 counsel afrua\ its of sere ice indicating that these individuals were served.: Accordingly, if you have served these individuals, please produce the affidavits of sere ice by February 28, 2011, whet V% :Se City Defendants 1k I seek Court Intervention Finally, City Defendants request to know whether you will be accepting service of subpoenas on Larry Sehoolcraft and 1 rank Serpico. Plaintiff's prior counsel. Jon Norinsberg, had consented to accept service ()Ian) subpoena issued to Larry Senooleralt and to produce him !Or a deposition. City Defendants have previously asked present counsel about this request (vve letter dated January 9. 2013), but have not heard back. Additionally, a Daily News article dated February 4, 2013 (annexed hereto) indicated that Frank Serpico is now part of plaintiff's "legal Accordingly, please indicate whether you will accept service of a subpoena issued to team Frank Serpico and whether you will produce him for deposition at a later date I r Sincerely yours, r ) Pubhcker 'orroi-oHoo .riiiHNCI Special Federal I !ligation Division sikea4: Ants r ( cc Creeory John Radornish iliv land Delivery) MAP. rifs (.1.1A101 i i.0 & BP... 1.I.P ,iffr,rneiis for Americo Hospital %India Is !land Delivery) (Al FAN, KOS:1FR, 13RA1)\ & BRENNAN, Attorno v jor ).)/Bart Aldana-Bernicr ('titter Whitehall Street New York, New York 10004 Bruce NI. Brady- ! 22() East 42nd Street 13th Floor New York, NY 10017 Brian] cc t. icy First -Class Mail) nvviNr& JENSEN, 1.I.P n .-1114,rneys for Dr. tvak 1,s'crkov 20(11 Marcus Avenue. Suite N1on Lake Success, New Yolk 11042 Waite] Aoy sins Kret/ , Jr rliy I lard Deliver)) SFIFF KRF. /. c ABERCR(IMBIF 'Mora) for Delethlopit Maur:elIo -144 Madison Avenue, 30th Floor New York, NY 10022 See Lmails to Jon Norinsberg. dated October 17, 2012, November 7. 2012, and November 1.;, 20:2. to Richard Gilbert dated December 21. 71)12, and conversation in person with I Richard Gilbert at the Court conference on .January 10, 2013. Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Page 20 of 21 EXHIBIT C 1 Case 1:10-cv-06005-RWS Document 134 Filed 03/13/13 Pa .e 21 of 21 Monle We ko me ,r t: y'itt Po... r 111149inlit Iff. of JON L. NORINSBERG, rh, IA% 225 Broadway, Suite 2700 New York, New York 10007 -2 212.791.5396 ..13 . i i 4(16.6690 www.norinsberglaw.corn Email norinsbergitaolcom COHEN & FITCH At,,no 1.1.1 Thc: Woolworth Building 233 Broadway, Suite 1000 New York, New York 10279 Tot 212.374.9115 1.3). 11',5 '3.3 wvvw.ccthenfitch.corn eaten/ gcohenfbcohenf,tch.com - _

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?