Schoolcraft v. The City Of New York et al
Filing
600
DECLARATION of Alan H Scheiner in Opposition re: 566 FINAL MOTION for Attorney Fees for Levine & Gilbert and Peter J. Gleason, Esq.., 559 MOTION for Attorney Fees , Costs and Disbursements.. Document filed by The City Of New York. (Attachments: # 1 Affidavit Declaration of Alan H Scheiner Previously Filed April 8, 2016, # 2 Exhibit Exhibit A, # 3 Exhibit Ex A-1, # 4 Exhibit Ex A-2, # 5 Exhibit Ex B, # 6 Exhibit Ex C, # 7 Exhibit Ec D, # 8 Exhibit Ex E, # 9 Exhibit Ex F, # 10 Exhibit Ex G, # 11 Supplement Ex H, # 12 Exhibit Ex I, # 13 Exhibit Ex J, # 14 Exhibit Ex K, # 15 Exhibit Ex L, # 16 Exhibit Ex M, # 17 Exhibit Ex N, # 18 Exhibit Ex O, # 19 Exhibit Ex P, # 20 Exhibit Ex Q, # 21 Exhibit Ex R, # 22 Exhibit Ex S, # 23 Exhibit Ex T, # 24 Exhibit Ex U, # 25 Exhibit Ex V, # 26 Exhibit Ex X, # 27 Exhibit Ex Y, # 28 Exhibit Ex Z, # 29 Exhibit Ex AA, # 30 Exhibit Ex BB, # 31 Exhibit Ex CC, # 32 Exhibit Ex DD)(Scheiner, Alan)
EXHIBIT 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
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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
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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.
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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
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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
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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.
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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
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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.
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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.
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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."
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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
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1 riE CITY OF NEW YORK
Susanna' rublither
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LAW DEPARTMENT
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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
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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
..
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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
` 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
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LAW DEPAI1TMENT
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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
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JON L. NORINSBERG,
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225 Broadway, Suite 2700
New York, New York 10007
-2 212.791.5396
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. 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
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