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 2127884123
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 2121884123
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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
.
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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 CANY
General Counsel
03/26/2012 MON
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16~43
FAX 2127994123
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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: (212) 788-1103
fax: (212) 7~~-9776
omai1; spublick@law.nyc.gov
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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