Schoolcraft v. The City Of New York et al

Filing 90

Letter addressed to Judge Robert W. Sweet from Jon L. Norinsberg dated 5/17/12 re: Counsel for the plaintiff requests that the Court deny defendants' motion to quash. Document filed by Adrian Schoolcraft. ***Accepted as a docket and file by Chambers. (mro) (mro).

MAY-17-2012

17:49

LAW OFFICES

12124066890

JON

P.02

L. NORINSBERG
ATIORNEY AT LAW

TRANSPORTATION BUILDING
225 BR.OADWAY
SUITE 2700
NEW YORK, NEW YORK 10007

www.norinsberglaw.com
[phone]

BRONX OFFICE

TEL

5938

FAX [phone]

FIELDSTON ROAD

BRONX,
JON

Nc:w YORK 10471

E-MAIL:

[e-mail]

(l1-~

L NORfNSBERG

ALEX UMANSKY

May 17,2012
VIA FACSIMILE: 212-805-7925
Honorable Robert W. Sweet
United States District Court
Southern District ofNew York
500 Pearl Street, Room 1920
New York. New York 10007
Re:

Schoplcraft v. City a/New York, et at

10 CV 6005 (RWS)

Your Honor:
I represent plaintiff Adrian Schoolcraft in the above-referenced civil rights action brought
pursuant to 42 US.c. § 1983. I write now to respectfully oppose defendants' letter motion, dated
May 11, 2012, to quash the subpoena served on non-party New York City Councilman Peter
Vallone. Defendants~ motion to quash the subpoena should be denied on the following grounds: (1)
Defendants lack standing to quash the subpoena on behalf of a non-party~ (2) the items sought are
directly relevant to the claims in this action; (3) Councilman Vallone has made numerous public
statements about having evidence in his possession which support the allegations of Adrian
Schoolcraft. For these reasons. defendants' motion to quash the subpoena should be denied in its
entirety.
Defendants Lack Standing To Ch~l.lIenge The Non-Party Subpoena. As There Is No Privilege
Being Claimed.
"In the absence of a claim of privilege. a party usually does not have standing to object to a
subpoena directed to a non party witness." Cole v. City of New York, No. 10 Civ. 5308,2011 U.S.
Dis!. LEXIS 76078, *3 (S.D.N. Y . .luI 1,2011) (quoting Langford v. Chrysler Motors Com., 513 F.2d
1121,1126 (2d Cir. 1975)). See also Nova Products, Inc. v. Kisma Video, Inc., 220 F.R.D. 238, 241
(S.D.N. Y. 2004) ("[A] party ordinarily lacks standing to quash a subpoena directed at a nonparty
unless the party is seeking to protect a personal privilege Or right."); 9A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2459 (3d ed. 2008) ("Ordinarily a party has no
standing to seek to quash a subpoena issued to someone who is not a party to the action t unless the
objecting party claims some personal right or privilege with regard to the documents sought.").

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Here, defendants have not asserted - nor could they - any privilege with respect to the
documents sought from non-party Councilman Peter Vallone. Therefore, defendants have no
standing to challenge the subpoena, and accordingly, their motion to quash should be denied. See
Cole v. City of New York, No. 10 Civ. 5308) 2011 U.S. Dist. LEXIS 76078, *3 (S.D.N.Y. JuI 1,
2011 ) (defendants "asserted no personal right or privilege in connection with the non-parties or the
documents subpoenaed, [and] [t]herefore, defendants have no standing to bring the motion to quash
the subpoenas served by the plaintiff on the non-parties"). Nor can defendants rely upon their legal
representation ofCouncilman Vallone as a basis for establishing standing. See Cole, 2011 U.S. Dist.
LEXIS 76078 at *4 C"That the defendants' attorney might represent the non-parties served with the
plaintiffs subpoena does not, by itself, establish standing to make a motion to quash the non-party
subpoena."), Accordingly, defendants' motion to quash the subpoena on Cowlcilman Vallone should
be denied.

The Items Sought In The Subpoena Are Directly Relevant To The Claims In This Action.
Under the Federal Rules, the scope ofdiscovery extends to "any matter not privileged which
is relevant to the subject matter in the pending matter, whether it relates to the claim or defense of
the party seeking discovery or the claim or defense of any other party .... " Fed. R. Civ. P. 26. The
phrase "relevant to the subject matter involved in the pending action has been construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matters that could bear
on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340) 351,
(1978). Therefore, limitations will be imposed only "on discovery sought in bad faith, to harass or
oppress the party subject to it, when it is irrelevant or when the examination is on matters protected
by a recognized privilege." In re Six Grand Jurv Witnesses, 979 F.2d 939, 943 (2d Cir. 1992).
Applying the above principles, all of the documents requested by plaintiff ate directly
relevant to the claims in this action. While defendants myopically focus only on the seizure which
took place on October 31, 2009, the Amended Complaint repeatedly and expressly refers to the
existence of the NYPD's unlawful quota policy and manipulation of crime statistics as the reason
why defendant took the actions that they did on October 31,2009. See, e.g., Am. Compi. ,2 ("The
NYPD had established an illegal quota policy for the issuance of summonses and arrests and []
defendants were falsifying and instructing police officers to suborn perjury on police reports to
distort COMPSTAT statistics."); id. at ~1161 ("'defendants illegally searched plaintiff's home and
illegally seized substantial evidence of corruption within the 81't precinct which plaintiff had
gathered. detailing the enforcement of illegal quotas andperjurious manipulation ofpolice reports,
as well as plaintiff s notes regarding his complaints against the 81 $1 precinct.") (emphasis supplied).
See also Am. Compi. at ~ 34-53; ,~ 73-83 (setting forth detailed allegations relating to NYPD's
illegal quota policy); id. at , 287 (alleging Monell claim "creating a quota system for NYPD
subordinate officers"). Thus, notwithstanding defendants' claims to the contrary, the items sought
in the subpoena are directly relevant to the claims in this action.
Apart from the plain wording in the complaint, dejimdants themselves have served discovery
demands relating to the very same iLems covered in the subpoena served on Councilman Vallone.
See" e.g., City Defendants' First Combined Set oflnterrogatories and Document Requests. Demand
No. 124 ( "[P]roduce any and all documents, notes and/or recordings etc., supporting plaintiff's
claim that the 8t'! Precinct and/or the NYPD has a quola policy.") (emphasis supplied). Thus, for

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defendants to suggest, as they do now, that the items sought by plaintiffin the Vallone subpoena are
irrelevant is disingenuous to the extreme. Accordingly; defendants' motion to quash on grounds of
relevancy should be denied.

Councilman Vallone Has Made Numerous Public Statements about Evidence in His Possession
Which Supports the Allegations of Adrian Schoolcraft.
Defendants further argue that the materials sought from Councilman Vallone are irrelevant
because Mr. Vallone does not represent constituents who reside within the confines of the 8pt
Precinct. However, as noted above, the allegations made in the complaint are not limited to the 81 S!
Precinct, but rather, pertain to the entire NYPD. Moreover, Mr. Vallone has made numerous public
statements about evidence which substantiates the claims made by Adrian Schoolcraft. See, e.g.,
New York Times Article dated 1anuary 5, 2011 ("1 believe that the statistics were in fact being
manipulated," Mr. Vallone said. "I have spoken to many current and former police officers who
unfOltunately refused to go on the record but who have corroborated that fact. And I've spoken to
many civilians whose valid complaints were not accepted by the Police Department"); Daily News
Alticle dated January 21, 2012 ("Everything from, "You have to go the precinct to file a report' to~
'We're not going to take a report because you didn't get a good look at the guy who robbed you,' "
Vallone said. "It's happened far too often Lo attribute it to a few confused police officers."); Village
Voice article dated March 14, 2012 ("This report (the QAD investigation which substantiated
Schoolcraft's allegations) might be a game changer," he says. "This is even more evidence that the
crime statistics are not accurate. It happens far too often for it to be just mistakes.") (emphasis
supplied). In fact, Councilman Vallone has expressly acknowledged the link between plaintiffs
allegations and the NYPD's unlawful policy of downgrading crime statistics. rd. ("Because ofthe
circumstances, the treatment of Schoolcraft should be looked at by the commission that Kelly
established."). Based on these public statements, defendant,,' suggest that Councilman Vallone has
no information relevant to this action is uttterly baseless. and should be rejected by the Court.

Conclusion
For all ofthe foregoing reasons, plaintiffrespectfully requests that the Court deny defendants'
motion to quash, and grant such other and further relief as the Court deems just and proper.
Respectfully submitted,

Jon L. Norinsberg. Esq,

cc:

Corporation Counsel
100 Church Street
Room 3-200
New York, New York 10007
Attn: Suzanna H. Publicker, Esq.

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Cohen & Fitch
233 Broadway
27th Floor
New York, New York 10007
Callan, Koster, Brady & Brennan LLP
Attorneys for Defendant
Dr. Lilian Aldana-Bernier
One Whitehall Street, 10th Floor
New York. New York 10004

Attn: Bruce M. Brady, Esq.. (BMB48 16)

t

Ivone, Devine & Jensen, LLP
Attorney for Isak Isakov, M.D.
200 I Marcus Avenue
Suite N100
Lake Success, New York 11042
Martin. Clearwater & Bell, LLP
Attorney tor Jamaica Hospital
220 East 42 nd Street
New York, New York 10017
Attn: Gregory J. Radomisli, Esq.

TOTAL P.05

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LAW OFFICES

LAW OFFICES OF

JON L. NOlUNSBERG

225 BROADWAY, SUITE 2700

NEW YORK, NEW YOR.K 10007

FAX TRANSMISSION

DATE:

March 13,2012

TO:

Honorable Robert W. Sweet
[phone]

Suzanna Publicker, Esq.
Corporation Counsel
[phone]

Cohen & Fitch
[phone]

Gregory John Radomisli. Esq.
Martin Clearwater & Bell, LLP
[phone]

Brian Lee, Esq.

Ivane, Devine & Jensen, LLP

[phone]

Bruce M. Brady, Esq.

Callan, Koster, Brady & Brennan, LLP

[phone]

FROM:

Jon L. Norinsberg, Esq.

Phone: [phone]

Fax: [phone]

PAGES:

(5) Including Cover .Memorandum

RE:

Adrian Schoo/crall v. City orNe.., York. et al.
10 CV6005 (RWS)

MESSAGE: Please see attached.

121241216689121

P.1211