Schoolcraft v. The City Of New York et al

Filing 94

Letter addressed to Judge Robert W. Sweet from Suzanna Publicker dated 3/26/12 re: Counsel for the City defendants writes in opposition to The New York Times' letter dated 3/21/12. Counsel requests that Your Honor deny their application. (mro)

03/25/2012 MON 15:43
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FAX [phone]

THE CITY OF NEW YORK

LAW DEPARTMENT

MlCHA.:L A. CAl-UJUZO

100 CHURCH STltHH'J'

{:orl'orarlotl C:OOtlJl~J

NEW YORK', NY

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SUZANNA l"UDU(:KER
phono; (7.12) ng·] IOJ

fux: (2 12) 7~1i:977('j

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omail:

Slll1blick(!:OI~w.nyc.gov

Murch 26, 2012

BY FAX & nAND DELIVERY

Honorablo Robert W. Sweet

United States District Judge

Southern District of New York

500 Penrl Street

New York, New York 10007

Re: Schoolcraft.v. The City of New York"etaL

JUOGESW£ETCH~BERS

1O-CV-6005 (R WS)
Your Honor:
I am the Assistant C()rpOfl.ltion Cmmsel in the office of Michael A. Cardozo,
Corporation Couns~l of the City of New York, assigned to represent the City Defendants in the
ubove-refercnced maH\::r. City Defendants write in opposition to The New York Times' (the
"Time:>") letter dated March 21, 2012, requesting (a) pernlission to intervene in this nmttr:r, (b)
moditication of the parties' so-order~d Stipulated Protcctiw Order, and (c) "to remove the
confidentiality dosignaLions from already-produced discovery materials," For the reasons stated
bdow, City Defendants rl;:spectfully request that Your Honor deny the Tirnt:H' I:lpplication to
intervene herein imd appear at the utal !.trgument currently scheduled f9r March 21:1,2012.

There b NQ Right of l'ublic Access to Dbcovcry Matel'inls
Foremo:;t, und perhaps most crucially, the Times has not speciIic&lly indicated
any docu,ment it seeks,to have de-designated as contidential. Thus, defendants' ability'tu fully
. respond to its· application is limited. Nonetheless, as the Times admits, "there is neithct a
common law nor First Amendment presumption of uccess to unfilcd discovery, 'us there is with
judicial document1;l filed with acourt,n Times Letter at. 2. A~ the Second Circuit has recognized,
"documents that phty no role in the pcrlbml.lnCe of Article III fhncLions, such as those passed
belwven the parties in di~~very, lie entirely beyond [WlY presumption of public accessJ."
~ccutHitlii und Exchange Commission v. TheStrect.com, 273 F.3d 222, 232 (2d Cir. 2001). The
Circuit has futllwr expounded. that "Id]iscovery involves the U;-ie of compulsory process (0
fucilitate orderly preparation for trial, not to educate or titillate tho pubBc." Joy v. North, 692
F.2d 8~O, 893 (2d Cir. 19H2), 111e Times' failure to artiClll£it~ uny legitimatc}.intcre:-;l in the use or
dissemination of discovery information outside of this litigation supports a findi.ng of gOI,)d I;,u.lse
for the Protcctiw Order ~md for the continutXi confidentiality of the subject documents. See
United States v. Alpodco, 71 FJd 1044, 1051 (2eI Cir, 1995).

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03/26/2012 MON 16!44
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FAX [phone]
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~003/004

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lTonomble Robort W. Sweet

Schoolcr~fLY.. The City of New York.1..9J al.
March 26,2012
.Page 2
The Times Mus Failed to Meet The St"rid~u'ds Ne~essary to Modify n Protective Order

'fhe :Second Circuit has emphasized {hat, once a protective order is "so on.l~red>"
the Com1 must enforce that order .. See Geller Y. Brank Intewational Realty Corponltion, 212
'F.3d 734 (2d Cir. 2000). ~'Although a district court has power to modily u protective order ...
the required showing must b~ m()i'e substantial than the good C,Ul$t;l needed to obtain a sealing
order in the flrs( instance." Jd. The burden of modifying a protective order, or of withdTLtwing
protection from documents already covered by a protective order, rests with the Times .'.' as the
"party" so.eking modificutiuJ1. See, c.g., Savage & Assocs. p.c. v. K&L Qat9§ LLP (In re
Teligent. Inc.), 640 F .3d 53, 59 (2d Cir. 2011). Th~re is '\\ general and strong presumption
ugUInst access" to documents previo\.l$ly designatod confidential. ~EC, 273 F.3d at 231.·
Moreover, "a district WUl'L :-;hould not modify' a protective ord~r. . , ; absent a showing of
improvidence in the grant of LthcJ order or some extnwrdillary circumstance or compelling
need. '" ~eCl!rities and Exchange Commission v, ThcS'1!..Q~.&9.ill, 273 F.3d 222, 229 (20 Cir.
2001).

Here, the Times has not shown thut the Protective Order was improvidently
granted, Each of the pa.Lties had an opportunity to thoroughly review and object to the terms of
the proposed Order priur to its execution. In tho end, all counsel, including plaintiffs. i,;onsented
to. the languttgc of the proposed Order. indeed, to date, no party to this litigulioll h~s challenged
the appropriateness of the Protective Order, (11' any documents produced in accordance therewith.
Thus, the Times cunnot demon::;trate 111at the Protective Ordcr, intelligently negotiuted by lhe
pliTlie~ thereto, was improvidently granted.
.
Similarly, the Times cannot demoll::;trute a compelling need fa]' access to thc
confidential documents produced herein. In Savage & Assoos. P.C. v~.K~L Gates LLP (In re
Teligent Tnc.), 640 P,3d 53, 59 (2d Cir. 2011), the Court implied that a party seeking to modify a
protective order. based on "compelling need" is reqt~ired to make such ~\ showing J~)r each
particular document it seeks to have disclosed. Th~ Times has not mentioned a single document
that it believes was incolTe<;Uy identiHed as contidential, nor has it made an attempt to explain
why it has It cvtnpelling need for any documents produced herein. The records deemed
cont1dcntial ill this matter include, ,inter alia, employment records subject to protection under
Public Officers Law Section 87(2)(g) d<,cuments thtlt are pnrt of ongoing investigations,
documents that are pnllected under tho deliberative process privilege, and plaintiff's psychiatric
records. The Times would bc hard-pressed to argue, or prove, that these types of documents ure
not subject to confidentiality. I
.
.
Fimtlly, the Tim~.!) seeks to force tho parties to make a showing of Bood cause for
oveJ'Y coplidential document produced going forwa.L'd. The Times' req'uest demonstraLes H
complctcdisregard for the Court's und the l1ltrties' .time, 111 jU!:iLil)dng ~uch a request. the Times
.
I Sou. C.g,. D.:tanis v, JPMorgan 'Chase &. Co" 10 Civ. 3384 (BSJ) (J1"C}, 2011 U,S. Pisl. LEXIS 137356, *5·6
(S,D.N.Y, Nov. 30, 20 II )(g,lod C<lU~C shllwn duo lO the "[legitimato privaoy concerns fthat] exist with l'egElrd to
pcrsonn-.:I filcs")(citing Ladson ·V. Ulltm Uilst Pm'king COIp., 164 F.R.D. 376, 377 n.2 (S.D.N.Y, 1996)); ~tQ,J!lY....
Chid .. lUG. v. NASD, 07 Cv. ~O 14 (SWK), 2008 U.S. Dis!. LEXIS 4617 (S.D.N.Y, Jan. 23, 2008) ("AI1l10Llgh a valid
assertion of privilege constitute$ good cause, n court may impose a p1'OTective order when 110 established privilege i,~
8pplicable.")(citiug, inter alta, Kunstler y, C:tlY_gfJ'~.~'Y,.York, 04 elv. 1145 (RWS) (MHD), 2006 U$. Di.sl.LEXLS
61747, at *8, * I! (S.D,N;Y. Aug. 29,20(6) (collecting cases), Elfi'd 242 F,R.D. 261 (S.D.N,Y. 2007)).

03/26/2012 MON 16:44

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jl004/004

Honorable Robclt W. Sweet
SC!LqQL~raft v. The City 0 ('New York. ct ai.
March 26,2012
Page 3
mert:ly asserts that the conduct of the NYPD is a "topic\] of central concern to the citizens of
New York." Times Letter Ilt 1. Coutts in this District have previously held thaI such protestations
of "public interest" proviue an "insufficient basis for rel;.luiring the pllrties to justify each
confldYnlh~lity designation at the time of production." Schiller v. City ofN9W YQI~, 04 CV 7921
(KMK)(JCF), 2007 U.S. Dist. LEXTS 4285 (S,D.N,Y. Jan. 19,2007).
The Times May Make a FOIL ncqucst for NYPD Documents
At the hoart of the Times instant application ~lppel.lr~ to be its df.lsirc 10 obtain
documents pertaining to the N YPD which is l\ Htopic[l \)1' central concern to the citizons of New
York." By the instunt ~\ppliCalion, however, the Timcs is attempting to circumvent the state law
provisions available to it. To the extent that the Times is seeking materiuJ pertuining 10 the
NYPD upon which to base news stories, the appropriate venue for such requests is a FOIL
reque!i1 to the NYPD. In the event such a request is unsucccssfuJ, the Times is afforded a state
Jaw remedy - an AlticJe 78 Proceeding - not intervention into the instL1l1t fedehd t\ction.
Based on the foregoing, City

Dej~mdant:s Te~pec{{u)ly

request that Your Honor

deny the Times' application to intervene herein and/or to challenge tho designation of any

confidcntial documents in tills matter, as they have no right to do so. However, if the Court is
inclined to allow the Times to be heard. defendunts request the opportunity to fully brief the
issue t including providing the Llppropriute declarations, irnecess\.try,

Thank you lor your consideration heroin. ..

SU:/.l.mm ublicker
ASSIstant Corporation Counsel

cc:

Jon L. Norinsberg (By Fax 2] 2-406~G890)
Attorney/iN' Plainittl
Cohen & Fitch, LLP (By Fax [phone])
Attorneysfor Plaintiff
Gregory ,Tl,hn R!.tdOlllisli (By Fux 212-949-7054)
MARTIN CLEARWATER &llELL LLP

Attorneys/or Jamaica Hospital Jvfedicctl Center

Brian Lee (By Fax [phone])
IVONE, DEVINE & JENSEN, LLP
Attorneys/or Dr. fsak lsakov
Bruce M. Bntdy (By Fax [phone])
CALLAN, KOSTER, BRADY & BRENNAN, LLP
Attorneys/or Lillian Aldana-Bernier
David E. McCraw (By Fax [phone])
NEW YORK TJMHS COMI>ANY

General Counsel

03/26/2012 MON
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I'fl'

16~43

FAX [phone]
.rr
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THE CITY OF NEW YORK

LAW DE~ARTMENT
100 CHURCH STREET
NEW YORK. NY 10007

FACSIMILE TRANSMISSION

TO:

Honorable Robert W. Sweet
Unit.ed States District JUdgll
Southern District of "New York

FROM:

Suzanna l'ublickcr
phone: [phone]
fax: (212) 7~~-9776
omai1; [e-mail]

FAx#:

212-805-7925

DATE:

MARCH 26, 2012

TO:

Jon L. Norinsbcrg
Cohen & Fitch, LLP
An01'fley/or Plaintiff

FAX #:

212A06-6890
Gregory John Radomisli

TO:

MARTIN CLEARWATI'iR & BELL LLll
Attonleys for Jamaica Hospital Medi~'al
Center

TO:

Bruce M. Brady
,
'GALLAN, KOSTER, BRADY &
BRENNAN, LLP
Attorneys fur f,ilIian Aldana-Bernier

FAX#;

212-949~ 7054

,FAX#:,

212-248-68]'5

TO:

Brian'Lee
IVONe, DEVINE & ,JENSEN, LUl
Attorneysfor Dr. lsak lsakov

TO:

NEW YORK TIMES COMPANY

516-352-4952

FAX#:

FAX#;

David E. McCraw

General Counsel
212~556-403

I

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Re:

SchoolcruH v. The City of New York, et aI., 1O-CV-6005 (RWS)