Schoolcraft v. The City Of New York et al

Filing 93

Letter (Treated as a Motion returnable 4-4) addressed to Judge Robert W. Sweet from David E. McCraw dated 3/21/12 re: Counsel writes on behalf of the New York Times Company to request that the Court permit The Times to intervene in the above-referenced action for the limited purpose of seeking a modification of the parties Stipulated Protective order and modify the Protective Order to require a showing of "good cause" for sealing and remove the confidentiality designations from already-produced discovery materials, except to the extent the materials disclose personal medical information or identify crime victims or confidential witnesses and thereby satisfy the "good cause" standard. (mro)

The NewYorkTimes
Company
David McCraw
Vice President and
Assistant General Counsel

620 Eighth Avenue
New York, NY 10018
tel [phone]
fax [phone]

March 21,2012

VIA FEDERAL EXPRESS
Hon. Robert W. Sweet
United States District Judge
Daniel Patrick Moynihan
United States Courthouse
500 Pearl Street
New York, NY 10007-1312
RE:

,

I

JUDGE SweET CHAMBERS

Schoolcraft v. The City of New York, et al (I 0-cv-6005)

Dear Judge Sweet:
On behalf of The New York Times Company ("The Times"), I write to respectfully request that
the Court (a) permit The Times to intervene in the above-referenced action for the limited
purpose of seeking a modification of the parties' Stipulated Protective Order, filed March 12,
2012 ("Protective Order"), (b) modify the Protective Order to require a showing of "good cause"
for sealing, and (c) remove the confidentiality designations from already-produced discovery
materials, except to the extent the materials disclose personal medical information or identify
crime victims or confidential witnesses and thereby satisfy the "good cause" standard. If the
Court prefers, we are prepared to move by formal motion.
The broad sealing of discovery items in this case is contrary to Second Circuit law. Before
discovery documents can be sealed, a party must make a specific showing of "good cause,"
which has not been demonstrated by the parties here - nor is that standard incorporated into the
Protective Order. Sealing is especially inappropriate when a lawsuit is the subject of immense
and legitimate public interest and deals with the practices and policies of a critical public agency.
The materials at issue here deal directly with a current controversy about possible police
corruption and the accountability of the police, topics of central concern to the citizens of New
York.

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The Right To Intervene. News organizations are routinely permitted to intervene and be heard
on issues involving public access to proceedings and documents, including challenges to
discovery protective orders. COUIts in the Second Circuit have granted such intervention
pursuant to Rule 24 of the Federal Rules of Civil Procedure, either as a matter of right or
permissively.
~, Securities and Exchange Comm'n v. TheStree1.Com, 273 F.3d 222, 227
(2d Cir. 2001); Schiller v. City of New York ("Schiller 1"),04 Civ. 7922 (KMK) (JCF), 2006
U.S. Dis1. Lexis 70479, at * 5-*6 (S.D.N.Y. Sept. 27, 2006); Kelly v. City of New York, No. 01
Civ. 8906 (AGS)(DF), 2003 U.S. Dist. Lexis 2553, at *6-7 (S.D.N.Y. Feb. 26, 2003); In re
NASDAQ Market-Makers Antitrust Litig., 164 F.R.D. 346, 350 (S.D.N.Y. 1996); Havens v.
Metropolitan Life Ins. Co., No. 94 Civ. 1402 (CSH), 1995 U.S. Dis1. Lexis 5183, at *6-*22
(S.D.N.Y. April 20, 1995); Savitt v. Vacco, No. 95 Civ. 1842, 1996 U.S. Dis1. Lexis 16875, at *
7 (N.D.N.Y. Nov. 8, 1996) ("The Second Circuit Court of Appeals and its district courts have
consistently held that news agencies have standing to challenge protective orders in cases of
public interest"). The Times's intervention will assure that the public's interest in access is
appropriately represented.
Schiller 1,2006 U.S. Dist. Lexis 70479, at *7-*8; Savitt, 1996
U.S. Dist. Lexis 16875, at * 7; Nasdaq, 164 F.R.D. at 351.
Improper Confidentiality Designation. Concededly, there is neither a common law nor First
Amendment presumption of access to unfiled discovery, as there is with judicial documents filed
with a court. See generally Lugosch v. Pyramid Company of Onondaga, 435 F.3d 110 (2d Cir.
2006) (First Amendment and common law right to judicial documents); United States v.
Amodeo, 44 F.3d 141 (2d Cir. 1995) (common law right to judicial documents). That does not
mean, however, that discovery is subject to sealing at the discretion of the parties or the court.
Instead, a party must show that it has met the "good faith" standards set forth in Fed. R. Civ. P.
26(c) before sealing is permissible.

The Second Circuit has made clear that discovery is open to the public unless good cause is
shown under Rule 26(c): "'[T]he party seeking a protective order has the burden of showing that
good cause exists for issuance of that order. It is equally apparent that the obverse also is true,
i.e., if good cause is not shown, the discovery materials in question should not receive judicial
protection and therefore would be open to the public for inspection'." Gambale v. Deutsche
Bank, 377 F.3d 133, 142 (2d Cir.2004) (quoting In re "Agent Orange" Products Liab. Litig., 821
F.2d 139, 145-46 (2d Cir. 1987»; see also San Jose Mercury News, Inc. v. U.S. Dis1. Ct., 187
F.3d 1096, 1103 (9 th Cir. 1999) ("It is well established that the fruits of pre-trial discovery are, in
the absence of a court order to the contrary, presumptively public"); Jepson, Inc. v. Makita Elec.
Works, Ltd., 30 F.3d 853, 858 (7 th Cir. 1994) (absent a protective order, "parties to a law suit
may disseminate materials obtained during discovery as they see fit"); Mitchell v. Fishbein, 227
F.R.D. 239, 254 (S.D.N. Y.2005) (movant must demonstrate good cause for order barring public
dissemination of discovery materials); Condit v. Dunne, 225 F.R.D. 113, 115 (S.D.N.Y. 2004)
(same).
To show good cause under Rule 26(c), parties are required to make a "particular and specific
demonstration of fact, as distinguished from stereotyped and conclusory statements." Havens,
1995 U.S. Dist. Lexis 5183, at *29 (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108,

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1121 (3d Cir. 1986»;' see also Carlson v. Geneva City Sch. Dist., 277 F.R.O. 90,94 (W.D.N.Y.
2011) (requiring "defined, specific, and serious injury" in case with public agency as a defendant
(citation omitted»; Schiller v. City of New York ("Schiller II"), 04 Civ 7922 (KMK) (JCF), 04
Civ. 7921 (KMK) (JCF), 2007 U.S. Dist. Lexis 4285, at *17-18 (S.D.N.Y. Jan. 19,2007) ('''the
harm must be significant, not a mere tritle'" in case involving public defendants (citation
omitted»; Allen v. City of New York, 420 F.Supp.2d 295,302 (S.D.N.Y. 2006) (to establish
good cause, a party must demonstrate that "a 'clearly defined and serious injury' ... would result
from disclosure of the document. " (citations omitted»; In re Terrorist Attacks on Sept. 11, 2001,
454 F. Supp. 2d 220,222 (S.D.N.Y. 2006) (ordinarily good cause, exists "when a party shows
that disclosure will result in a clearly defined, specific and serious injury,,). 2
Because this litigation necessarily implicates the performance of governmental agencies and
actors, the case for openness is even stronger. See Flaherty v. Seroussi, 209 F.R.D. 295, 299-300
(N.D.N.Y. 2001) (declining to seal discovery because there is "a strong, legitimate public interest
on the part of the citizenry to have unfettered access to court proceedings, particularly when they
involve elected officials and the performance of their governmental responsibilities"); Hawley v.
Hall, 131 F.R.D. 578, 585 (D. Nev. 1990) (opening discovery because "the public interest in the
conduct of public officials, elected and appointed, outweighs" the interests cited by the
defendants); see generally Schiller II, 2007 U.S. Dist. Lexis 4285 (unsealing various police
documents in a case challenging the practices of the New York City Police Department
("NYPD")).
Here, a review of the public filings in this litigation strongly supports the notion that the public
has a legitimate interest in understanding fully both the positions of the plaintiff and the
defendants. The Complaint, which has been the subject of extensive coverage, raises serious
concerns about the conduct of the NYPD - whether it has had an illegal quota policy for the
issuance of summonses and arrests; given instructions for police officers to suborn perjury on
police reports; and attempted to prevent disclosure of these illegal acts by having officers
unlawfully enter into plaintiff's home and subject him to involuntary commitment in a
psychiatric ward for six days.
Complaint at ~l 2.) Whether these allegations are true or not,
the public is ill-served by not having the opportunity to know what evidence is being offered up
by the parties to support or disprove such claims and more broadly to understand whether or no
illicit conduct is being condoned by the NYPD within its own ranks.
1 In re Terrorist Attacks, 454 F.Supp.2d at 222, posits that a different standard may apply in complex
cases, and an earlier Southern District case (Topo v. Dhir, 210 F.R.D. 76, 77 (S.D.N.Y. 2002» saw a split
in the case law and suggested that the Cipollone standard applied only in commercial cases, but the later
decisions cited here from cases involving public agency defendants show that the standard articulated in
Cipollone and Allen is the appropriate standard in this case.
2 While parties may sometimes argue that modification of a protective order is unwarranted where they
have relied upon it, that principle does not apply where, as here, confidentiality designations are made
without a showing of good cause.
Schiller II, 2007 U.S. Dist. Lexis 4285, at *9-10 ("Where a
protective order permits parties to designate discovery materials as 'Confidential' without a showing of
good cause, and one party challenges a designation made by another, the challenging party is not seeking
to modify the protective order and therefore does not bear the burden of demonstrating that the
confidentiality designations should be lifted").

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The parties have failed to demonstrate any harm, let alone harm rising to the level of "good
cause," that will result from the disclosure of these materials dealing with a public agency that
depends on the trust and confidence of the public, especially in respect to those materials that are
the records of the NYPD itself. While good cause may justify the redaction and sealing of
personal medical information or the identities of crime victims or confidential witnesses to
crimes, no such concern attaches to the communications, reports, and other documents of the
NYPD dealing with departmental practices and policies.
Accordingly, we respectfully ask the Court to modify the Protective Order to require the parties
to establish good cause before sealing discovery materials and to direct the unsealing of any
already-designated discovery that does not meet the standards of good cause as set forth above.
Respectfully submitted,

~--!(
David E. McCraw

Cc:

Jon L. Norinsberg, Esq.

Bruce M. Brady, Esq.

Brian Lee, Esq.

Suzanna Publicker, Esq.

Gregory John Radomisli

(all via facsimile)

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