Greater New York Taxi Association et al v. The City of New York et al
MEMORANDUM AND ORDER granting in part and denying in part 110 Motion to Compel; granting in part and denying in part 111 Motion to Compel. For the reasons discussed above, the defendants' motion to compel (Docket no. 111) and the pla intiffs' motion to compel (Docket no. 110) are both granted in part and denied in part. Within forty-five days of this Order, the plaintiffs shall: Add the four "Freidman Custodians" as document custodians. Respond to Document Re quest Nos. 15, 16, and 19 in the Defendants' Sixth Set of Document Requests with documents dating back to November 8, 2013. Respond to Document Request Nos. 6 and 7 in the Defendants' Seventh Set of Document Requests with documents dati ng back to January 18, 2013. Respond to Document Request Nos. 1 through 6 in the Defendants' Sixth Set of Document Requests, with the caveat that the plaintiffs need not produce physical copies of directives and summonses issued by the TLC. Respond to Interrogatory Nos. 4 through 9 in the Defendants' Fourth Set of Interrogatories. Within forty-five days of this Order, the defendants shall: Produce all documents withheld on the basis of deliberative process privilege that imp licate decision-making in individual enforcement actions against the plaintiffs' medallions, and produce a privilege log for any documents the defendants continue to withhold on the basis of deliberative process privilege. Remove the attorn ey-client privilege redactions from the email chains attached as Exhibits K and L to the Declaration of James M. Lemonedes dated April 28, 2017, and produce those email chains to the plaintiffs. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 9/11/2017) Copies Transmitted this Date By Chambers. (anc)
numerous discovery disputes out of court, the defendants and the
plaintiffs both bring omnibus motions to compel.
For the reasons
stated below, both motions are granted in part and denied in part.
GNYTA is a trade association that represents approximately
1,500 taxicab medallions operating in New York City.
Amended Complaint (“TAC”), ¶ 13). Mr. Freidman owns “a substantial
number” of taxicab medallions through four management companies;
operates the largest fleet of hybrid and wheelchair accessible
Orleans; and controls more than one-sixth of the “mini fleet”
medallions in New York City.
(TAC, ¶ 14; Letter of Brett Berman
dated April 9, 2015, attached as Exh. 1 to Declaration of Nicholas
R. Ciappetta dated April 28, 2017 (“Ciappetta Decl.”), at 1).
is also a member of GNYTA’s board of directors.
(TAC, ¶ 14).
In December 2009, the TLC issued a Request for Proposals to
automobile manufacturers to develop the “Taxi of Tomorrow,” which
would become “New York City’s Official Taxicab Vehicle.”
Once selected, all unrestricted medallion owners would
be required to purchase the Taxi of Tomorrow to the exclusion of
all other makes and models.
(TAC, ¶ 25).
On May 30, 2011, after
considering several proposals, the TLC announced that the Nissan
NV200 was selected as the Taxi of Tomorrow.
(TAC, ¶ 31).
City entered into a ten-year contract with Nissan, set to begin in
October 2013, granting it the exclusive right to manufacture and
supply taxicabs to medallion owners and setting a uniform price
for the vehicles.
(TAC, ¶¶ 25, 33).
consequences of the Taxi of Tomorrow project, specifically, the
loss of their ability to choose their vehicles from among competing
manufacturers, a possible fleet-wide recall by Nissan, or an
interruption in the availability of replacement parts.
Accordingly, on January 18, 2013, the plaintiffs filed an
Article 78 proceeding in New York State Supreme Court challenging
the implementation of the Initial Taxi of Tomorrow Rules on the
grounds that they exceeded the TLC’s rule-making authority, were
arbitrary and capricious, violated a New York City law promoting
(TAC, ¶ 36).
This was not the first lawsuit
the plaintiffs had filed against the TLC; GNYTA, along with the
Metropolitan Taxicab Board of Trade (“MTBOT”), another trade group
representing medallion owners, had filed a number of lawsuits
against the TLC dating back to 2008 challenging policies that
purposefully disadvantaged the taxi industry.
(TAC, ¶¶ 37-45).
This lawsuit is based on allegations that the defendants
proceeding by selectively enforcing TLC rules violations against
Specifically, the plaintiffs allege that, after the
summonses against medallions owned by Mr. Freidman’s management
companies in enforcement actions that they had previously agreed
to postpone indefinitely (TAC, ¶¶ 48, 57); that Mr. Yassky offered
to abandon certain enforcement actions against medallions owned by
the plaintiffs and their members if the plaintiffs dropped the
Article 78 lawsuit (TAC, ¶¶ 61-62); that, when the plaintiffs
refused the offer, the defendants escalated their enforcement
enforcing anachronistic rules that they had not enforced in decades
(TAC, ¶¶ 67-68, 72-73, 76, 80, 89-92); that the defendants declined
to enforce similar violations against medallions owned by MTBOT
members because MTBOT agreed to drop its pending actions against
the TLC and support the Taxi of Tomorrow project (TAC, ¶¶ 52-56,
163); that the defendants encouraged the New York State Attorney
General to file a lawsuit against Mr. Freidman (TAC, ¶¶ 111-12,
“destroy” the taxicab industry (TAC, ¶ 98); that, when Mayor
Bloomberg left office, he invested in Lyft and former TLC officials
took jobs at Uber and Lyft -- both competitors of the taxi industry
-- to make good on that threat (TAC, ¶¶ 124-26); and that Citibank,
from whom Mr. Freidman had taken out loans, accelerated the balance
due on his loans and ultimately ended its banking relationship
with him because of pressure put on it by the defendants (TAC, ¶¶
Though not mentioned in the operative complaint,
the plaintiffs allege in their Amended Initial Disclosures that
Disclosures”), attached as Exh. 27 to Ciappetta Decl., at 7).
The defendants move to compel the plaintiffs to (1) produce
documents from nine additional custodians; (2) answer several
dating back to July 1, 2010; and (4) run additional search terms.
They also seek permission to depose Mr. Freidman for more than
The plaintiffs move to compel the defendants to
produce documents withheld on the basis of deliberative process
privilege, attorney-client privilege, and work product privilege.
The Federal Rules of Civil Procedure permit parties to
obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1).
“Although not unlimited, relevance, for
the purpose of discovery, is an extremely broad concept.” American
Federation of Musicians of the United States and Canada v. Sony
Music Entertainment, Inc., No. 15 Civ. 5249, 2016 WL 2609307, at
*3 (S.D.N.Y. April 29, 2016) (quoting Condit v. Dunne, 225 F.R.D.
100, 105 (S.D.N.Y. 2004)).
Relevant documents must be produced if they are within the
“possession, custody, or control” of the party from whom discovery
Fed. R. Civ. P. 34(a)(1); see Royal Park Investments
SA/NV v. Deutsche Bank National Trust Co., No. 14 Civ. 4394, 2016
WL 5408171, at *5 (S.D.N.Y. Sept. 27, 2016).
Thus, if a document
is not in the responding party’s actual possession or custody,
“courts look to see whether the party has control of it, construing
the word ‘control’ broadly.”
Royal Park, 2016 WL 5408171, at *5
(quoting Export-Import Bank of the United States v. Asia Pulp &
Paper Co., 233 F.R.D. 338, 341 (S.D.N.Y. 2005)).
considered to be under a party’s control when that party has the
right, authority, or practical ability to obtain the documents
from a non-party to the action.”
United States ex rel. Kester v.
Novartis Pharmaceuticals Corp., No. 11 Civ. 8196, 2014 WL 6655703,
at *3 (S.D.N.Y. Nov. 24, 2014) (alteration in original) (quoting
Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D.
135, 146 (S.D.N.Y. 1997)).
When the party resisting discovery
denies possession or control, “[t]he discovering party bears the
burden of establishing control.”
S.E.C. v. Strauss, No. 09 Civ.
4150, 2009 WL 3459204, at *7 (S.D.N.Y. Oct. 28, 2009); accord
Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 n.7
Defendants’ Motion to Compel
The plaintiffs have already collected and produced documents
from six custodians, including Mr. Freidman and Ethan Gerber, the
Executive Director and General Counsel of GNYTA.
Memorandum of Law in Opposition to Defendants’ Motion to Compel
(“Pl. Opp. Memo.”) at 6). The defendants move to compel production
of documents from nine additional custodians, whom they divide
into two groups: (1) the “GNYTA” Custodians,” five former GNYTA
board members; and (2) the “Freidman Custodians,” four employees
Memorandum of Law in Support of Their Motion Pursuant to Federal
Rule of Civil Procedure 37 to Compel Discovery (“Def. Memo.”) at
6, 9, 14).
The “GNYTA Custodians”
Yuri Treskunov, Zion Yakuel, Symon Garber, Guy Roberts, and
Floren Pereman (collectively, the “GNYTA Custodians”), are former
GNYTA board members who each owned their own fleet of taxicab
(Def. Memo. at 5-6; Deposition of Greater New York
Taxi Association by Ethan Gerber dated Aug. 20, 2015 (“Gerber
Dep.”), attached as Exh. 15 to Ciappetta Decl., at 57-61).
board members, they met periodically with Mr. Freidman and Mr.
Gerber, usually by telephone, to vote on the major activities GNYTA
would undertake, including the decision to file this lawsuit.
(Gerber Dep. at 43-46, 146-47).
According to Mr. Gerber, they all
(Gerber Dep. at 57-61, 120-21; Letter of James M.
Lemonedes dated Aug. 5, 2016 (“Lemonedes 8/5/16 Letter”), attached
as Exh. 18 to Ciappetta Decl., at 2).
As an initial matter, these custodians meet Rule 26(b)(1)’s
GNYTA’s claim for damages is based in part
on losses caused by the disassociation of its board members, such
as the loss of payments contributing to funding this litigation.
(Gerber Dep. at 120; Amended Initial Disclosures at 7-8).
board members’ emails are reasonably likely to shed light on
enforcement, as the plaintiffs contend, or if they disassociated
for unrelated reasons, such as dysfunction within GNYTA.
the plaintiffs must make an adequate search of their own records
for relevant documents created by the GNYTA Custodians -- for
example, email correspondence between them and Mr. Freidman or Mr.
Gerber -- if they have not already done so. 1
That, however, does not end the inquiry.
The defendants seek
more than just documents in the plaintiffs’ possession; they seek
Custodians’ possession as well. 2
(Def. Memo. at 6-7).
plaintiffs contend that they lack control over documents in the
GNYTA Custodians’ possession because GNYTA is “a loose association
of fleet owners” and the board members “did not have separate GNYTA
(Pl. Opp. Memo. at 7-8 (emphasis omitted)).
Mr. Gerber testified at his deposition that he searched his
own records for documents created by former GNYTA board members
(Gerber Dep. at 137), but Mr. Freidman has made no such
Although Mr. Gerber testified that he “would probably have”
any emails concerning the former board members’ affiliation with
GNYTA in his possession (Gerber Dep. at 137, 177-78), the
defendants point out that he may not have all relevant emails
written by the GNYTA custodians.
(Def. Memo. at 7 (“[The]
[p]laintiffs do not acknowledge the possibility that GNYTA members
may have corresponded without copying Gerber. Nor do Plaintiffs
account for responsive emails between GNYTA members and third
corporation has control over its board members, officers, and
employees, such that it must produce documents in their possession.
See, e.g., Royal Park, 2016 WL 5408171, at *6; Miniace v. Pacific
Maritime Association, No. C 04-03506, 2006 WL 335389, at *2 (N.D.
Cal. Feb. 13, 2006); Riddell Sports Inc. v. Brooks, 158 F.R.D.
Custodians is currently a board member, so whatever mechanisms of
control GNYTA had over them have since disappeared. 3
courts have found that a party has the “practical ability” to
The defendants also argue that the plaintiffs had a duty to
preserve and collect responsive documents from board members when
litigation became reasonably foreseeable, here, in March 2013,
when GNYTA began to contemplate filing this lawsuit. (Def. Memo.
at 7-8; Gerber Dep. at 150). At that time, the taxi companies of
at least two of the GNYTA Custodians, Mr. Roberts and Mr.
Treskunov, were still affiliated with GNYTA. (Gerber Dep. 59-60;
Lemonedes 8/5/16 Letter at 2). Thus, the defendants argue that
GNYTA should have begun to preserve and collect at least the emails
of these two individuals in March 2013. (Def. Memo. at 8). It is
true that when litigation becomes reasonably foreseeable, a
litigant has a “duty to preserve what it knows, or reasonably
should know, is relevant in the action, is reasonably calculated
to lead to the discovery of admissible evidence, [or] is reasonably
likely to be requested during discovery.” Passlogix, Inc. v. 2FA
Technology, LLC, 708 F. Supp. 2d 378, 409 (S.D.N.Y. 2010) (quoting
Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y.
Here, however, the former board members’ emails are
relevant to determine their motivation for disassociation.
defies logic to expect the plaintiffs to have collected and
preserved documents from board members before the reason why those
documents are relevant (their disassociation) had occurred.
circumstances, such as where the party and the non-party have a
continuing economic relationship, see Royal Park, 2016 WL 5408171,
at *6, the defendants have made no showing with regard to any
factors that might establish the plaintiffs’ practical ability to
obtain documents from former GNYTA board members.
defendants have not met their burden to establish the plaintiffs’
control over documents in the GNYTA Custodians’ possession. 4
The “Freidman Custodians”
Elizabeth Suazo di Paola-Otero
Elizabeth Suazo di Paola-Otero was the Controller of Taxi
Club Management Inc. (“Taxi Club”), one of Mr. Freidman’s taxi
management companies, from July 2007 to July 2014.
Profile”), attached as part of Exh. 20 to Ciappetta Decl.).
this role, she compiled and reported on Taxi Club’s medallion
mortgage loans, developed relationships with several financial
Courts have sometimes required that a party subject to a
document request exert the minimal effort of asking a related nonparty to produce documents voluntarily. See Royal Park, 2016 WL
5408171, at *7; Export-Import Bank, 233 F.R.D. at 341; In re
Folding Carton, 76 F.R.D. 420, 423 (N.D. Ill. 1977). In this case,
however, there is no reason to believe that such a request would
be favorably received. I will therefore not require the plaintiffs
to go through what is likely a futile exercise. The defendants
may, of course, subpoena the documents directly from the former
GNYTA board members.
institutions, and served as one of the primary points of contact
with Citibank on Mr. Freidman’s accounts.
(Deposition of Mayra
Franceschini dated July 14, 2016 (“Franceschini Dep.”), attached
as Exh. 33 to Ciappetta Decl., at 130-31; Paola-Otero Linkedin
deterioration of those banking relationships, which is relevant to
both the defendants’ liability -- whether the defendants put
pressure on the banks to accelerate Mr. Freidman’s loans -- and
selective enforcement caused the banks to accelerate the loans.
The plaintiffs shall therefore add Ms. Paola-Otero as a document
Anita Cisneros was the Chief Financial Officer of Taxi Club.
(Affidavit of Anita Cisneros, Citibank, N.A. v. Bombshell Taxi
LLC, Index No. 650691/2015, ¶ 1 (N.Y. Sup. Ct. June 8, 2015),
attached as part of Exh. 21 to Ciappetta Decl.).
Like Ms. Paola-
The portion of Mayra Franceschini’s deposition provided by
the defendants does not identify who she is, her affiliation with
Citibank, or the litigation in which her deposition was taken.
However, her email signature, attached to the defendants’ motion
as part of another exhibit, identifies her as a Senior Relationship
Services Specialist for Citibank.
(Emails of Anita Cisneros &
Mayra Franceschini dated Oct. 30, 2014 (“Cisneros/Franceschini
Emails”), attached as part of Exh. 21 to Ciappetta Decl.).
Otero, Ms. Cisneros communicated with Citibank and Capital One
about Mr. Freidman’s loans.
(Franceschini Dep. at 130-31).
Cisneros is therefore a relevant document custodian for the same
reasons as Ms. Paola-Otero.
Though the plaintiffs suggest that
her emails would be duplicative of Ms. Paola-Otero’s (Pl. Opp.
Memo. at 10), the defendants provide copies of communications
between Ms. Cisneros and employees of both banks on which Ms.
Email of Jessica Mendoza dated Feb. 2, 2015, attached as part of
Exh. 21 to Ciappetta Decl.).
The plaintiffs shall therefore add
Ms. Cisneros as a document custodian.
Mikhail Kats was the Senior Leasing Manager at Woodside
(Affidavit of Mikhail Kats dated July 18, 2013 (“Kats
Aff.”), attached as part of Exh. 22 to Ciappetta Decl., ¶ 1).
this role, Mr. Kats monitored and oversaw the medallions owned by
Woodside Management; other than Mr. Freidman, he was the only
person with authority to enter into contracts with medallion owners
on Woodside’s behalf.
(Kats Aff., ¶¶ 3-4; Deposition of Evgeny
Freidman, Tom Trans Taxi, Ltd. v. Woodside Management Inc., Index
No. 500432/11, at 11 (N.Y. Sup. Ct. July 19, 2013), attached as
part of Exh. 22 to Ciappetta Decl.).
The plaintiffs challenge his
inclusion as a custodian solely on the ground that he does not
possess relevant documents.
(Pl. Opp. Memo. at 10-11).
in his position at Woodside, Mr. Kats likely communicated with
medallion owners at the time they disassociated from Woodside.
Whether they did so because of the TLC’s selective enforcement
goes directly to Mr. Freidman’s claim for damages based on loss of
(Amended Initial Disclosures at 7).
the plaintiffs shall add Mr. Kats as a document custodian.
(Affidavit of Mark Longo (“Longo Aff.”), Greater New York Taxi
Association v. New York Taxi & Limousine Commission, Index No.
101083/2013, ¶ 1 (N.Y. Sup. Ct. July 29, 2013), attached as part
of Exh. 23 to Ciappetta Decl.).
The defendants argue that Mr.
Longo is a relevant custodian because he filed an affidavit in the
Article 78 proceeding opposing the Taxi of Tomorrow project and
communicated with Mr. Freidman about the status of the project.
(Def. Memo. at 11).
The plaintiffs effectively concede that Mr.
Mr. Longo was probably an employee of Taxi Club as well, as
he had a Taxi Club email address -- his email signature lists email
addresses at four different taxi-related businesses and describes
him as holding numerous director-level positions, but does not
specify where he held each of those positions.
(Email of Mark
Longo dated Dec. 3, 2012, attached as part of Exh. 23 to Ciappetta
Decl.). It is therefore unclear what position, if any, he held at
Longo has relevant documents, stating that they will produce “all
non-privileged documents concerning the [Taxi of Tomorrow] program
they have located . . . includ[ing] communications to and from
(Pl. Opp. Memo. at 11).
Although the plaintiffs
oppose his inclusion as a custodian, they provide no meaningful
basis for doing so.
They shall add Mr. Longo as a document
Finally, the plaintiffs contend that the custodians sought by
the defendants are not proportional to the needs of the case under
(Pl. Opp. Memo. at 12-13).
Earlier in this
litigation, the defendants sought as many as thirty-one additional
(Letter of Nicholas R. Ciappetta dated Oct. 23, 2015,
attached as Exh. F. to Declaration of James M. Lemonedes dated May
Had they requested the same number of custodians here,
a lengthier discussion of proportionality might be necessary.
However, the defendants have whittled that request down to an
additional nine custodians, and I have authorized discovery as to
only four. Given the seriousness of the allegations levied against
the defendants, the amount of money at stake (Amended Initial
possession, the additional custodians are proportional to the
needs of the case.
Next, the defendants move to compel the plaintiffs to respond
to a number of document requests.
They divide the requests into
three categories: (1) requests concerning Mr. Freidman’s banking
concerning Mr. Freidman’s banking relationships with institutions
other than Citibank and Capital One, and (3) requests concerning
TLC enforcement actions.
(Def. Memo. at 16).
Citibank and Capital One
The first category of document requests seeks production of
correspondence between the plaintiffs and Citibank and Capital One
concerning the formation, development, and deterioration of their
demonstrating Mr. Freidman’s compliance with the terms of the
(Document Requests, attached as part of Exh. 26
to Ciappetta Decl., Sixth Set of Requests, Nos. 15-16, 19; Seventh
Set of Requests, Nos. 6-7). The plaintiffs, meanwhile, have agreed
to produce any responsive documents that directly address TLC
enforcement actions but dispute the need to produce anything more.
(Pl. Opp. Memo. at 20-21; Letter of James M. Lemonedes dated June
9, 2016, attached as Exh. 11 to Ciappetta Decl., at 5, 10).
The defendants’ document requests sweep too broadly, but the
production offered by the plaintiffs is too narrow. The defendants
argue that the documents are necessary to assess the plaintiffs’
allegations that “Citibank had no good-faith reason to accelerate
towards [the] [p]laintiffs was influenced by [the] [d]efendants.” 7
(Def. Memo. at 16-17 (first alteration in original) (quoting TAC,
In other words, the relevant documents are those
that pertain to the deterioration of the banking relationships
between Mr. Freidman and Citibank and Capital One.
include more than just documents that discuss the TLC’s enforcement
actions, as the plaintiff offer, but less than the full history of
those banking relationships, as the defendants request.
Accordingly, the plaintiffs shall respond to these document
requests by producing documents from the time period during which
the banking relationships fell apart.
The plaintiffs allege that
Citibank sent its first notice of termination to Mr. Freidman on
May 8, 2014 (TAC, ¶ 136), and do not specify a date on which their
Presumably, pursuant to the plaintiffs’ Amended Initial
Disclosures, these arguments applies with equal force to Mr.
Freidman’s banking relationship with Capital One.
Initial Disclosures at 7).
Because documents predating May 8,
Citibank to accelerate Mr. Freidman’s loans and terminate his
accounts, the plaintiffs shall respond to the document requests
pertaining to Citibank -- Numbers 15, 16, and 19 in the Sixth Set
of Requests -- dating back to November 8, 2013, six months before
the date that Citibank sent its first notice of termination.
Because the parties fail to specify when Capital One took similar
actions, the plaintiffs shall respond to the document requests
pertaining to Capital One –- Numbers 6 and 7 in the Seventh Set of
Requests -- by producing documents dating back to January 18, 2013,
the date the plaintiffs filed the Article 78 proceeding that is
the basis of their retaliation claim.
Other Banking Relationships
The second category of document requests seeks production of
documents containing information about Mr. Freidman’s loans with
(Document Requests, Sixth Set of Requests, No. 20; Seventh Set of
Requests, No. 9).
Such documents are at most marginally relevant.
The plaintiffs do not allege that the defendants’ actions damaged
Mr. Freidman’s banking relationships with institutions other than
Citibank and Capital One. Still, the defendants contend that these
documents are needed to perform a “comparative analysis” to show
how factors other than pressure applied by the defendants and the
banking relationships with Citibank and Capital One.
Such a production would require an onerous search of
documents by Mr. Freidman, yet it would not directly prove or
negate any wrongdoing by the defendants or prove any of the
TLC Enforcement Actions
The third category of document requests seeks production of
(Document Requests, Sixth Set of Requests, Nos. 1-6). 8
Documents concerning the plaintiffs’ efforts to comply with the
TLC’s directives and summonses are relevant to the plaintiffs’
selective enforcement claim.
If the plaintiffs made little or no
The defendants also include Document Request No. 7 from
their Sixth Set of Requests in this group. (Def. Memo. at 16).
However, this request is unrelated to the others.
documents concerning a press release allegedly issued by the
defendants that disparages Mr. Freidman.
Sixth Set of Requests, No. 7; TAC, ¶ 8). Neither party addresses
the substance of this document request in their briefs.
therefore decline to rule on it here.
defendants’ issuance of summonses was likely justified; if, on the
other hand, the plaintiffs made genuine efforts to comply, but the
Along the same lines, the efforts to settle
summonses are relevant to whether the defendants acted reasonably
in negotiations, which would refute a retaliatory motive.
The plaintiffs argue that even if the requested documents are
relevant, they should not be required to respond to these requests
because the defendants “certainly possess whatever documents they
relied upon to prosecute these enforcement actions.”
Memo. at 17).
The fact that a party already has information that
it seeks through a document request does not necessarily excuse
the responding party from complying with the request.
See Dew v.
39th Street Realty, No. 99 Civ. 12343, 2001 WL 388053, at *1
(S.D.N.Y. April 16, 2001) (“[T]he fact that an adversary may
already have some of the information it seeks is not an excuse for
failing to produce responsive documents.”); Scotti v. Johnson, No.
89 Civ. 2064, 1990 WL 144815 (S.D.N.Y. Sept. 20, 1990) (“[T]he
fact that the party seeking discovery may already have access to
the documents is not necessarily a basis for denying enforcement
of a document request . . . .”).
Still, where a party “should
already have the communications requested,” it “has a diminished
‘need for discovery.’”
Pacific Gas & Electric Co. v. United
States, 69 Fed. Cl. 323, 327 (Fed. Cl. 2005) (quoting United States
ex rel. Fisher v. Network Software Associates, 217 F.R.D. 240, 246
(D.D.C. 2003)); cf. Mills v. Lempke, No. 11 CV 440, 2012 WL
1574749, at *5-6 (W.D.N.Y. May 3, 2012) (denying document request
because party “already ha[d] much of [the] information” sought).
The TLC should certainly have records of the directives and
defendants’ document requests list specific dates on which the
violated, information that likely originated from the directives
Requests, Nos. 1-2, 4-5).
Therefore, the plaintiffs are not
requested directives and summonses.
However, the defendants are
unlikely to have full documentation of the plaintiffs’ efforts to
comply with TLC directives or summonses, and they may or may not
maintain records of settlement negotiations.
The plaintiffs shall
document requests with the exception of physical copies of the
requested directives and summonses.
Fourth Set of Interrogatories, Nos. 4-9
This group of interrogatories asks the plaintiffs to identify
persons, other than attorneys, employees of the City of New York,
or employees of the United States Courts, with whom they discussed
a number of their allegations.
(Interrogatories, attached as Exh.
26 to Ciappetta Decl., Fourth Set of Interrogatories, Nos. 4-9;
TAC, ¶¶ 5, 10, 60-61, 63-65, 95, 127, 144, 171).
The identity of
such individuals will help the defendants verify the accuracy of
the allegations in the operative complaint.
In addition, the
defendants point out that the plaintiffs’ statements to third
parties would be admissible as admissions against interest if they
are indeed inconsistent with the plaintiffs’ allegations.
Memo. at 19-20).
These interrogatories therefore seek relevant
requests will require an excessively burdensome review of all of
their communications with various third parties.
(Pl. Opp. Memo.
However, the defendants do not seek such an exhaustive
search of records with respect to at least Interrogatory No. 5,
which concerns Mayor Bloomberg’s alleged threat to “destroy” the
taxi industry. All they seek is for “[the] [p]laintiffs’ attorneys
simply  to ask Freidman and Gerber with whom they discussed this
(Def. Memo. at 19).
This request places no serious
burden on the plaintiffs, and the defendants do not suggest that
they seek anything more from the plaintiffs’ responses to the other
interrogatories in this group.
The plaintiffs shall therefore
respond to this group of interrogatories by having Mr. Freidman
and Mr. Gerber produce a list of people with whom they discussed
the allegations, orally and in writing, from their own memories. 9
Fourth Set of Interrogatories, No. 12
This interrogatory seeks the identity of all banks or lenders
(Interrogatories, Fourth Set of Interrogatories, No. 12).
Freidman’s financial relationships with banks other than Citibank
and Capital One.
As discussed above, those banking relationships
are not at issue here and have minimal probative value.
plaintiffs need not respond to this interrogatory.
Importantly, this list is limited to people with whom Mr.
Gerber and Mr. Freidman discussed the allegations, not the subject
matter underlying the allegations.
For example, the list must
include people with whom they discussed the allegation that the
TLC retaliated against them for opposing the Taxi of Tomorrow
project, but need not include people with whom they discussed each
individual enforcement action brought by the TLC.
Fifth Set of Interrogatories, No. 2
This interrogatory seeks the identity of all employees of Mr.
Freidman’s taxi management companies other than taxi drivers,
Interrogatories, No. 2).
The defendants contend that they need
(Def. Memo. at 21).
However, as noted
earlier, the defendants requested as many as thirty-one additional
custodians earlier in this litigation.
They provide no valid
reason why a full list of Mr. Freidman’s employees would reveal
additional relevant custodians about whom they are not already
The plaintiffs need not respond to this interrogatory.
Document Collection Dates
So far in the litigation, the plaintiffs have collected and
produced documents dating back to January 1, 2012. (Pl. Opp. Memo.
The defendants move to compel the plaintiffs to produce
documents dating back to at least July 1, 2010.
22 & n.24).
(Def. Memo. 21-
To be sure, the plaintiffs’ publicly criticized the
Taxi of Tomorrow project and the TLC instituted enforcement actions
against the plaintiffs prior to January 2012.
(Def. Memo. at 22).
However, the crux of the plaintiffs’ allegations is that the
defendants retaliated against them for filing the Article 78
proceeding in January 2013.
The burden of adding eighteen months
to the plaintiffs’ document search vastly outweighs the potential
relevance of documents that predate the filing of the Article 78
proceeding by more than one year.
Therefore, the defendants’
request for the plaintiffs to collect and produce documents from
before January 1, 2012, is denied.
The defendants move to compel the plaintiffs to run additional
search terms to capture information about the deterioration of the
plaintiffs’ banking relationships with Citibank and Capital One.
(Def. Memo. at 23-24).
A court should be reluctant to resolve a
motion to compel search terms absent technical expertise:
Whether search terms or “keywords” will yield the
information sought is a complicated question involving
the interplay, at least, of the sciences of computer
technology, statistics and linguistics. See George L.
Paul & Jason R. Baron, Information Inflation: Can the
Legal System Adapt?, 13 Rich. J.L. & Tech. 10
(2007). . . .
Given this complexity, for lawyers and
judges to dare opine that a certain search term or terms
would be more likely to produce information than the
terms that were used is truly to go where angels fear to
United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008).
opinions for me to assess their motion to compel search terms.
The application is therefore denied.
This leaves the defendants
with three options: “They can cooperate [with the plaintiffs]
(along with their technical consultants) and attempt to agree on
an appropriate set of search criteria.
They can refile a motion
to compel, supported by expert testimony.
Or, they can request
the appointment of a neutral consultant who will design a search
Assured Guaranty Municipal Corp. v. UBS Real Estate
Securities Inc., No. 12 Civ. 1579, 2012 WL 5927379, at *4 (S.D.N.Y.
Nov. 21, 2012).
Deposition of Mr. Freidman
Finally, the defendants seek to depose Mr. Freidman for more
30(d)(1) of the Federal Rules of Civil Procedure.
30(d)(1) also requires the court to allow more than seven hours
for a deposition “if needed to fairly examine the deponent.”
Crawford-Bey v. New York & Presbyterian Hospital, No. 08 Civ. 5454,
2010 WL 2143673, at *4 (S.D.N.Y. May 26, 2010) (quoting Fed. R.
Civ. P. 30(d)(1)).
As the owner of medallions against whom the
defendants allegedly retaliated, a GNYTA board member, and the
subject of Mayor Bloomberg’s alleged threat, Mr. Freidman is a
central figure in this action.
The defendants are therefore
The first category of document requests in this motion to
compel, to which the plaintiffs must respond, concerns the
deterioration of Mr. Freidman’s banking relationships with Capital
One and Citibank -- the same issue addressed by the defendants’
proposed search terms. I urge the parties to meet and confer to
agree on search terms for the plaintiffs to run to respond to those
permitted to depose him for more than seven hours.
shall meet and confer on a reasonable time limit.
Plaintiffs’ Motion to Compel
The plaintiffs move to compel the defendants to produce
numerous documents they have withheld on the basis of deliberative
process privilege, attorney-client privilege, and work product
I address each category of privilege in turn.
Deliberative Process Privilege
reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and
policies are formulated.”
Department of the Interior v. Klamath
Water Users Protective Association, 532 U.S. 1, 8 (2001) (quoting
National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S.
132, 150 (1975)).
The privilege rests on “the obvious realization
that officials will not communicate candidly amongst themselves if
each remark is a potential item of discovery and front page news,
and its object is to enhance ‘the quality of agency decisions’
by protecting open and frank discussion among those who make them
within the Government.”
Id. at 8-9 (citation omitted) (quoting
Sears, Roebuck & Co., 421 U.S. at 151).
To be protected by the
privilege, a document must be “(1) an inter-agency or intra-agency
document; (2) ‘predecisional’; and (3) deliberative.”
United States Department of Justice, 312 F.3d 70, 76 (2d Cir.
2002); accord Brennan Center for Justice at New York University
School of Law v. United States Department of Justice, 697 F.3d
184, 194 (2d Cir. 2012).
“Predecisional communications are those
decisionmaker in making a decision.
MacNamara v. City of New York, No. 04 Civ. 9612,
2007 WL 755401, at *9 (S.D.N.Y. March 14, 2007) (quoting Marisol
A. v. Giuliani, No. 95 Civ. 10533, 1998 WL 132810, at *6 (S.D.N.Y.
March 23, 1998)).
The deliberative process privilege is a qualified one. Courts
must “balance an agency’s interest in nondisclosure against a
litigant’s need for the information and, to some extent, the
public’s interest in open government when deciding whether to
uphold the privilege.’”
New York v. Salazar, 701 F. Supp. 2d 224,
237 n.9 (N.D.N.Y. 2010); see also MacNamara, 2007 WL 755401, at
Thus, “[t]he privilege may be inapplicable where the agency’s
deliberations are among the central issues in the case.”
Resources Defense Council, Inc. v. Fox, No. 94 Civ. 8424, 1998 WL
158671, at *5 (S.D.N.Y. April 6, 1998); accord Anilao v. Spota,
No. 10 CV 32, 2015 WL 5793667, at *19 (E.D.N.Y. Sept. 30, 2015).
U.S.D.J., ordered the defendants to “review their deliberative
process redactions that ‘implicate the central issues to the case’
and, if necessary, make appropriate disclosures.”
August 19, 2015, at 2).
The defendants removed a majority of their
deliberative process redactions in response to Judge Broderick’s
(Plaintiffs’ Memorandum of Law in Support of Motion to
Compel Discovery (“Pl. Memo.”) at 5; Defendants’ Memorandum of Law
in Opposition to Plaintiffs’ Motion to Compel the Production of
deliberative process redactions should be removed because they
likewise implicate central issues in this case.11
(Pl. Memo. at
Approximately eighty-one documents produced by the defendants
contain deliberative process privilege redactions.
Memo. at 8).
The plaintiffs provide two examples of redactions
The defendants counter that ruling on the validity of their
deliberative process redactions would be “premature” because they
have not produced a privilege log. (Def. Memo. at 8-9). However,
the defendants have had ample time to do so. In September 2015,
they promised to produce a privilege log for any deliberative
process redactions they retained after Judge Broderick’s Order.
(Letter of Nicholas R. Ciappetta dated Sept. 18, 2015, at 1). The
plaintiffs should not face further delay because the defendants
failed to fulfill that promise.
that they view as improper. 12
The first is an email chain among a
number of TLC officials discussing whether to suspend eighteen of
Mr. Freidman’s medallions.
(Emails dated March 20-21, 2013,
attached as Exh. G to Declaration of James M. Lemonedes dated April
28, 2017 (“Lemonedes 4/28/17 Decl.”); Def. Opp. Memo. at 5).
second is an email chain among TLC commissioners discussing the
adoption of revised rules for the Taxi of Tomorrow project after
the state court struck down the Initial Taxi of Tomorrow Rules in
the Article 78 proceeding. (Emails dated May 17-18, 2013, attached
as Exh. H to Lemonedes 4/28/17 Decl.; Def. Opp. Memo. at 5).
These examples provide a useful framework for resolving the
parties’ deliberative process privilege dispute.
The first email
chain, discussing whether to suspend Mr. Freidman’s medallions,
implicates a central issue in this case -- what motivated the
“[W]hen the decision-making process itself is the
The plaintiffs attach six additional examples of documents
with deliberative process redactions that they view as improper to
their reply brief. (Plaintiffs’ Reply Memorandum of Law in Support
of Motion to Compel Discovery (“Pl. Reply”) at 5-7; Declaration of
James M. Lemonedes dated May 26, 2017, Exhs. A-F). Because the
defendants did not have an opportunity to respond to the
plaintiffs’ arguments regarding these exhibits, I do not address
them individually here. However, my ruling on this motion applies
equally to them as it does to the plaintiffs’ other deliberative
The defendants “represent that the redact[ed] portions of
subject of the litigation, the deliberative process privilege
cannot be a bar to discovery.”
Anilao, 2015 WL 5793667, at *19
(quoting Children First Foundation, Inc. v. Martinez, No. 01 CV
927, 2007 WL 4344915, at *7 (N.D.N.Y. Dec. 10, 2007)); accord
Gisbert Construction Co. v. Engeleiter, No. 90 Civ. 5803, 1991 WL
74652, at *1 (S.D.N.Y. May 1, 1991).
Conversely, the second email
chain, discussing proposed revisions to the Taxi of Tomorrow Rules,
does not implicate a central issue in this case -- the plaintiffs
do not allege that the adoption or revision of the Taxi of Tomorrow
Rules themselves constituted unlawful retaliation.
redactions anew and remove any redactions that implicate the
predecisional, deliberative communications about agency policy,
such as the formulation of the Taxi of Tomorrow Rules, and do not
defendants must also produce a privilege log for the redactions
the email chain do not link the contemplated enforcement to [the]
[p]laintiffs’ filing of their Article 78 proceeding.” (Def. Opp.
Memo. at 5). The fact that the redacted emails make no express
link between the suspension decisions and the Article 78 proceeding
does not mean they will not shed light on the defendants’
motivation for its enforcement decisions.
they retain along with the required disclosures.
The attorney-client privilege protects from disclosure “(1)
a communication between client and counsel that (2) was intended
to be and was in fact kept confidential, and (3) was made for the
purpose of obtaining or providing legal advice.”
In re County of
Erie, 473 F.3d 413, 419 (2d Cir. 2007); accord United States v.
Ghavami, 882 F. Supp. 2d 532, 536 (S.D.N.Y. 2012).
communication; rather, the touchstone is “whether the predominant
purpose of the communication is to render or solicit legal advice.”
In re County of Erie, 473 F.3d at 420; accord United States v.
Mount Sinai Hospital, 185 F. Supp. 3d 383, 389 (S.D.N.Y. 2016).
The privilege protects both the advice of the attorney to the
client and the information communicated by the client that provides
a basis for giving advice.
See Upjohn Co. v. United States, 449
U.S. 383, 390 (1981); Chen-Oster v. Goldman, Sachs & Co., 293
F.R.D. 547, 554 (S.D.N.Y. 2013).
“[T]he burden is on a party
claiming the protection of a privilege to establish those facts
relationship . . . .”
In re Grand Jury Subpoena Dated January 4,
1984, 750 F.2d 223, 224 (2d Cir. 1984); Ghavami, 882 F. Supp. 2d
The plaintiffs argue that the defendants improperly invoked
concerning the enforcement of leasecap violations (the “Leasecap
officials; and (3) communications where none of the attorneys is
a member of the Corporation Counsel’s Office or the TLC “legal
(Pl. Memo. at 8-12).
Leasecap Enforcement Memoranda
The defendants’ invocation of the attorney-client privilege
on the Leasecap Enforcement Memoranda is proper.
David Ross, a
prosecuting attorney at the TLC, authored the memoranda to Sherry
Cohen, an Assistant Commissioner of Prosecution at the TLC; they
litigation” 15 regarding the enforcement of leasecap violations
The plaintiffs also challenge the invocation of attorneyclient privilege on “two attorney notes concerning leasecap
enforcement.” (Pl. Memo. at 12). However, those notes are only
withheld on the basis of work product privilege. (New York City
Law Department -- Categorical Privilege Log (“Privilege Log”),
attached as Exh. I to Lemonedes 4/28/17 Decl., NYC-P 56-57).
Accordingly, I do not address them in this section.
The defendants define “decisions concerning prosecution”
as documents “reflecting or requesting legal advice . . .
[regarding] the decision to commence enforcement, the issuance of
summonses/directives, the prosecution of summonses, and the
decision to resolve the  action.” (Privilege Log, Categories).
They define “anticipated litigation” as documents “reflecting or
requesting legal advice . . . in connection with anticipated
litigation.” (Privilege Log, Categories).
against various taxi management companies, including some of the
plaintiffs’ companies. 16
(Privilege Log at NYC-P 1-55, 58-59).
cannot apply to these documents because they are communications
between two attorneys.
(Pl. Memo. at 8-9).
However, “[i]n the
governmental context, the ‘client’ may be the agency and the
attorney may be an agency lawyer.”
Adamowicz v. Internal Revenue
Service, 672 F. Supp. 2d 454, 470 (S.D.N.Y. 2009) (quoting Tax
Analysts v. Internal Revenue Service, 117 F.3d 607, 618 (D.C. Cir.
1997)); accord Maki v. United States, No. 07 CV 443, 2008 WL
1756330, at *4 (W.D. Va. April 16, 2008).
Indeed, “it is not
provision of legal advice in dual capacities -- both giving legal
advice to agency employees and requesting legal advice from inhouse or outside counsel.”
Davis, 2012 WL 612794, at *11 n.15.
Accordingly, a communication between two government attorneys may
be protected by the attorney-client privilege where one attorney
The plaintiffs argue that this description is insufficient
to determine whether the attorney-client privilege applies. (Pl.
Memo. at 9). That argument is without merit. See Davis v. City
of New York, No. 10 Civ. 699, 2012 WL 612794, at *11 (S.D.N.Y.
Feb. 27, 2012) (party met burden to establish attorney-client
privilege where it “identified the author and recipient” of the
document and “provided a description of the document which either
include[d] a legal term of art . . . or some other language
suggesting the document relate[d] to legal advice”).
“play[s] the role as the requester of legal advice on behalf of
The Leasecap Enforcement Memoranda fit into that paradigm.
authority to decide whether the TLC would prosecute taxi management
companies, sometimes on her own and sometimes in consultation with
memoranda, Mr. Ross is giving her legal advice about how to proceed
against taxi management companies based on the findings of his
(Def. Opp. Memo. at 12-13).
Thus, Ms. Cohen was
effectively the “requester of legal advice” on behalf of the TLC
-- advice that she used to decide what enforcement actions the
agency (the client) would take. 17
Additionally, the defendants
To refute this line of reasoning, the plaintiffs cite
Jackson v. City of New York, No. 05 Civ. 721, 2006 WL 2789990
(S.D.N.Y. Sept. 27, 2006). Jackson involved a memorandum authored
by an attorney in the Advocate’s Office of the New York Police
Department (the “NYPD”) to a supervising attorney in that office;
the memorandum summarized the results of an investigation into two
officers’ alleged improper conduct and made recommendations as to
appropriate disciplinary action.
Id. at *1.
attorney then relayed those recommendations to the Commander of
the Advocate’s Office, the final decision-maker with respect to
disciplinary action. Id. at *3. The court held that the attorneyclient privilege did not apply to this memorandum because the
communication was “between two attorneys, with no indication that
any advice contained in it was to be communicated to a client.”
Id. at *2.
The Leasecap Enforcement Memoranda are indeed similar to the
memorandum at issue in Jackson. Here, as in Jackson, an agency
assert that the memoranda were intended to be kept confidential
and have in fact been kept confidential within the agency (Def.
Opp. Memo. at 12-13), which the plaintiffs do not dispute.
defendants have therefore met their burden to establish that the
Leasecap Enforcement Memoranda are protected by the attorneyclient privilege. 18
The plaintiffs argue that three email chains contain improper
Lemonedes 4/28/17 Decl., Exhs. H, K-L).
The defendants respond
that the redacted emails in the first email chain, attached as
Exhibit H to their motion, are “an implicit request for legal
attorney is summarizing the results of his investigations to a
supervisor and giving legal advice about how the agency should
proceed based on his findings. However, as discussed above, the
Leasecap Enforcement Memoranda were intended to provide legal
advice to the client (the TLC). This distinguishes them from the
memorandum at issue in Jackson, which the court concluded was not
intended to be communicated to the “client.” I will not pass on
the correctness of that conclusion, except to note that another
court in this District more recently found similar communications
between two NYPD attorneys to be protected by the attorney-client
privilege where, as here, one attorney “played the role as the
requester of legal advice on behalf of the [agency].” Davis, 2012
WL 612794, at *11 n.15.
defendants also withhold the Leasecap Enforcement
the basis of work product privilege. (Privilege log,
Because I have found that the Leasecap
Memoranda are protected by the attorney-client
do not reach that issue.
advice” because Meera Joshi, then-Deputy Commissioner of Legal
Affairs and General Counsel for the TLC, is copied on the emails,
and because the emails discuss proposed revisions to the Taxi of
Tomorrow Rules after the state court invalidated the initial rules
in the Article 78 proceeding. (Def. Opp. Memo. at 16-17; Lemonedes
privileged where it constitutes an implicit request for legal
advice and the other elements of the privilege are present . . . .”
Retail Brand Alliance, Inc. v. Factory Mutual Insurance Co., No.
05 Civ. 1031, 2008 WL 622810, at *2 (S.D.N.Y. March 7, 2008).
Courts have held that communications constitute implicit requests
for legal advice where an attorney is copied on the communications
and the communications implicate specific legal issues.
ADT Security Services, Inc. v. Swenson, No. 07-2983, 2010 WL
company’s response to media coverage about pending lawsuit on which
General Counsel was copied were attorney-client privileged as
implicit requests for legal advice), and TNI Packaging, Inc. v.
Perdue Farms, Inc., No. 05 C 2900, 2006 WL 6654885, at *2 (N.D.
application [sent to the client’s attorney] was  an implicit
application.”), with Retail Brand Alliance, 2008 WL 622810, at *2
information” was not protected as implicit request for legal
The redacted emails here fit into that framework; TLC
commissioners are communicating about how to craft a new set of
legal rules after a court invalidated their initial set of rules,
and the TLC’s General Counsel was copied on the emails. Therefore,
the defendants’ attorney-client privilege redactions in Exhibit H
The defendants support their claim of privilege on the second
email chain, attached as Exhibit K to the plaintiffs’ motion,
merely by asserting that “an agency attorney is either the author
or the recipient on each of the redacted portions of the email
(Def. Opp. Memo. at 17; Lemonedes 4/28/17 Decl., Exh. K).
Absent any representation that the emails either solicit or provide
legal advice, the defendants have not met their burden to establish
The defendants argue that a single redacted email in the third
email chain, attached as exhibit L to the plaintiffs’ motion, is
also protectable as an implicit request for legal advice.
Opp. Memo. at 17 & n.8).
The redacted email appears to consist of
Mr. Yassky forwarding a conversation between himself and Mr.
Freidman that covers a range of topics to a group of TLC employees.
Although Ms. Joshi is copied on the email, there is no indication
that it solicits legal advice or implicates a specific legal issue,
unlike the redacted emails in Exhibit H. Therefore, the defendants
have not met their burden to establish that the redacted email in
Exhibit L is protected by the attorney-client privilege.
The defendants shall therefore remove the attorney-client
privilege redactions in the email chains attached as Exhibits K
and L to plaintiffs’ motion.
defendants to produce all documents withheld on the basis of
attorney-client privilege “where none of the attorneys is a member
of the Corporation Counsel’s office or the TLC’s legal bureau.”
(Pl. Memo. at 12).
The plaintiffs do not clearly explain their
rationale for this request; it appears to be based on their
government attorneys are not protected by the attorney-client
privilege and their view that the TLC’s prosecuting attorneys are
not part of the TLC’s “legal bureau.”
(Pl. Memo. at 9 (“Mr. Ross
and Ms. Cohen are prosecuting attorneys. . . .
[N]either of them
is a member of the TLC’s legal department . . . .”).
connection with the Leasecap Enforcement Memoranda.
assertion seems to make a distinction between the TLC’s General
Counsel’s Office and its prosecuting attorneys, but the plaintiff
request is denied.
Work Product Privilege
The work product doctrine “shields from disclosure materials
prepared ‘in anticipation of litigation’ by a party or the party’s
representative, absent a showing of substantial need.”
States v. Adlman, 68 F.3d 1495, 1501 (2d Cir. 1995) (quoting Fed.
R. Civ. P. 26(b)(3)).
The immunity is designed to protect “mental
United States v. Adlman, 134 F.3d 1194, 1194 (2d
Cir. 1998). A document is prepared “in anticipation of litigation”
if “in light of the nature of the document and the factual
situation in the particular case, [it] can fairly be said to have
been prepared or obtained because of the prospect of litigation.”
Id. at 1202 (quoting Charles Alan Wright, Arthur R. Miller, &
Richard L. Marcus, 8 Federal Practice & Procedure § 2024, at 343
The party invoking the protection bears the heavy burden
of establishing that it applies.
In re Grand Jury Subpoena Dated
July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007); In re Initial
Public Offering Securities Litigation, 249 F.R.D. 457, 459-60
Courts recognize two types of work product: “fact” work
product and “opinion” work product.
Fact work product encompasses
In contrast, opinion work product reveals the
‘mental impressions, conclusions, opinions, or legal theories of
an attorney or other representative,’ and is entitled to greater
protection than fact work product.”
In re Grand Jury Subpoena
Dated July 6, 2005, 510 F.3d at 183 (citation omitted) (quoting
Adlman, 134 F.3d at 1197).
A party may discover fact work product
where it shows a substantial need for the materials and that it
cannot obtain the equivalent information by other means without
In re Grand Jury Proceedings, 219 F.3d 175, 190
(2d Cir. 2000); Costabile v. County of Westchester, 254 F.R.D.
160, 167 (S.D.N.Y. 2008).
Opinion work product is protected from
discovery “unless a highly persuasive showing [of need] is made.”
In re Grand Jury Proceedings, 219 F.3d at 190 (alteration in
original) (quoting Adlman, 134 F.3d at 1204); see also In re
Initial Public Offering Securities Litigation, 249 F.R.D. at 460
(stating that opinion work product “is typically given absolute
The plaintiffs move to compel the defendants to produce twelve
attorney notes: two of the notes concern leasecap enforcement;
seven are notes created in preparation for prosecutions at the New
York City Office of Administrative Trials and Hearings (“OATH”);
two are notes of complaining witness interviews; and one concerns
“failure to comply with TLC directives.”
(Pl. Memo. at 14;
Privilege Log, NYC-P 56-57, 60-66, 68-69, 73).
The leasecap enforcement notes, authored by Mr. Ross, each
concern enforcement against a separate taxi management company;
they are categorized as “decisions concerning prosecution” and
plaintiffs do not contest the designation of these documents as
attorney work product.
Rather, they assert in conclusory fashion
that the notes are “critical” to their selective enforcement claims
(Pl. Memo. at 14), but make no specific showing as to why the notes
contain crucial information that they cannot obtain elsewhere.
The leasecap enforcement notes are therefore protectable attorney
The OATH prosecution notes, also authored by Mr. Ross, are
“trial outlines and witness examination questions” created in
preparation for prosecutions at OATH (Def. Opp. Memo. at 21); they
The defendants define “pending litigation” as “[d]ocuments
reflecting work prepared at the direction of counsel . . . in
connection with pending litigation.” (Privilege Log, Categories).
are categorized either as “pending litigation” or as “decisions
concerning prosecution” and “pending litigation” (Privilege Log,
NYC-P 60-61, 63-64, 66, 68-69).
The plaintiffs argue that the
defendants have failed to satisfy Southern District of New York
Local Civil Rule 26.2(a)(2)’s requirement that a party invoking
document; specifically, they take issue with the fact that the
defendants do not identify who is being prosecuted.
(Pl. Memo. at
However, that information is not necessary to establish that
the notes were prepared in anticipation of litigation at OATH,
which the defendants state clearly in their privilege log.
plaintiffs then modify their argument, contending that knowing who
is being prosecuted is necessary not to establish the privilege
itself, but instead to determine whether the prosecutions concern
the plaintiffs’ taxi management companies, in which case the
substantial need for the documents.
(Pl. Reply at 13).
the OATH prosecution notes concerned prosecutions against the
plaintiffs’ companies, however, the plaintiffs make no showing as
to their need for information contained in the attorneys’ trial
preparation materials that could not be obtained elsewhere.
OATH prosecution notes are therefore protectable attorney work
The notes of complaining witness interviews, authored by Mr.
(Privilege Log, NYC-P 65, 73).
lawyer’s notes of an interview of a non-party witness is classic
work product and may contain both facts and mental impressions of
Institute for Development of Earth Awareness v.
People for Ethical Treatment of Animals, 272 F.R.D. 124, 125
Still, the plaintiffs make similar arguments
here as they did with respect to the OATH prosecution notes: that
identity of the interviewees to determine whether the privilege
applies and to assess their need for the documents.
fails for the reasons already stated in connection with the OATH
The complaining witness notes are therefore
protectable attorney work product.
Finally, the note concerning “Failure to Comply with TLC
Directives,” authored by Mr. Ross, is categorized as “anticipated
litigation” and “decisions concerning prosecution.”
Log, NYC-P 62).
The defendants assert that this note was also
created in preparation for prosecutions at OATH.
(Def. Opp. Memo.
The plaintiffs do not specifically challenge the
invocation of work product privilege on this document or make any
showing as to their need for it.
It is therefore protectable
attorney work product for the same reason as the OATH prosecution
In sum, the defendants’ invocation of the work product
privilege on all twelve attorney notes challenged by the plaintiffs
defendants’ settlement with MTBOT in which they allegedly agreed
to drop enforcement actions against medallions owned by MTBOT
members in exchange for MTBOT agreeing to support the Taxi of
(Pl. Memo. at 15; TAC, ¶¶ 52-56, 163).
documents, authored by TLC attorney Chris Wilson, are two draft
settlement agreements, two agendas for settlement meetings with
MTBOT, and one set of attorney notes of a meeting with MTBOT.
(Privilege Log, NYC-P 78-82).
The plaintiffs do not challenge the
invocation of the work product doctrine on any of these documents;
the defendants’ invocation of the immunity is indeed proper.
N.V. Organon v. Elan Pharmaceuticals, Inc., No. 99 Civ. 11674,
2000 WL 520622, at *2 (S.D.N.Y. May 1, 2000) (documents like draft
settlement agreements that are “produced . . . for the purpose of
protectable attorney work product).
Instead, the plaintiffs assert that the documents must be
produced because the settlement with MTBOT is central to the
plaintiffs’ selective enforcement claim.
(Pl. Memo. at 15).
However, the defendants represent that they have already given the
plaintiffs the final settlement agreement and any draft versions
of the agreement they exchanged with MTBOT, as well as numerous
emails between the TLC and MTBOT regarding the negotiations (Def.
Opp. Memo. at 23), which the plaintiffs do not dispute.
the plaintiffs contend that, at a minimum, the documents produced
for internal use only -- the meeting agendas and the notes of the
meeting -- are necessary because they “reveal exactly what the TLC
discussed with MTBOT, and would therefore reveal whether the TLC
agreed to treat MTBOT differently from [the] [p]laintiffs in
exchange for MTBOT’s support of the Taxi of Tomorrow Program.”
(Pl. Reply at 14).
However, the plaintiffs have not shown that
they are unable to obtain this information elsewhere, such as in
the documents already produced by the defendants or by deposing
the MTBOT members involved in the negotiations.
MTBOT documents are protectable attorney work product.
Committee for Taxi Safety Meeting Note
The plaintiffs next move to compel production of a single set
of notes drafted by Mr. Wilsonyh in preparation for a settlement
meeting with the Committee on Taxi Safety (“CTS”), a taxi industry
group; the notes purportedly discuss the enforcement of double46
shifting violations and the Taxi of Tomorrow project.
Log, NYC-P 83; Letter of Nicholas R. Ciappetta dated May 25, 2016
(“Ciappetta 5/25/16 Letter”), attached as Exh. Q to Lemonedes
designation of these notes as attorney work product, but argue
that they have a substantial need for the notes because the
entities based on their position with respect to the Taxi of
Tomorrow project is a central issue in this litigation.”
Memo. at 15). This assertion again fails to specify why plaintiffs
have a need for information in these notes that could not be
obtained elsewhere. The CTS settlement meeting notes are therefore
protectable attorney work product.
Notes of Meeting with Attorney General
Finally, the plaintiffs move to compel the defendants to
produce notes authored by TLC attorney Jason Gonzalez of a meeting
potential for that office to commence an investigation of the
plaintiffs; the documents are marked “anticipated litigation” and
“decisions concerning prosecution.”
Ciappetta 5/25/16 Letter at 4).
(Privilege Log, NYC-P 84-85;
The plaintiffs argue that the
notes are fact work product because they merely record the contents
of the meeting.
(Pl. Memo. at 16).
However, an attorney’s mental
processes are implicated when he or she “exercises selective
judgment in determining what is worthy of being written down.”
S.E.C. v. Nadel, No. 11 CV 215, 2012 WL 1268297, at *7 (E.D.N.Y.
April 6, 2012) (quoting S.E.C. v. Sentinel Management Group, Inc.,
No. 07 C 4684, 2010 WL 4977220, at *9 (N.D. Ill. Dec. 2, 2010)).
Thus, the notes of the meeting with the Attorney General’s Office
constitute opinion work product.
The plaintiffs have not made the requisite highly persuasive
showing of need for these notes to overcome the privilege.
they argue that deposing the meeting participants would not enable
them to get the same information that is contained in the notes
because the memories of meeting participants are likely diminished
(Pl. Reply at 15), the plaintiffs have not provided any evidence
that the memories of meeting participants have in fact faded.
Therefore, the notes of the meeting with the Attorney General’s
Office are protectable attorney work product. 20
For the reasons discussed above, the defendants’ motion to
compel (Docket no. 111) and the plaintiffs’ motion to compel
The plaintiffs also seek an order compelling the defendants
to refrain from using the work product privilege in the future on
any documents that “squarely relate” to the plaintiffs’ claims.
(Pl. Memo. at 16). As discussed above, that is not the standard
for overcoming the work product privilege. This request is denied.
(Docket no. 110) are both granted in part and denied in part.
Within forty-five days of this Order, the plaintiffs shall:
Add the four
Respond to Document Request Nos. 15, 16, and 19 in
the Defendants’ Sixth Set of Document Requests with
documents dating back to November 8, 2013.
Respond to Document Request Nos. 6 and 7 in the
Defendants’ Seventh Set of Document Requests with
documents dating back to January 18, 2013.
Respond to Document Request Nos. 1 through
Defendants’ Sixth Set of Document Requests,
caveat that the plaintiffs need not produce
copies of directives and summonses issued by
Respond to Interrogatory Nos. 4 through 9 in the
Defendants’ Fourth Set of Interrogatories.
6 in the
Within forty-five days of this Order, the defendants shall:
Produce all documents withheld on the basis of
decision-making in individual enforcement actions
against the plaintiffs’ medallions, and produce a
privilege log for any documents the defendants
continue to withhold on the basis of deliberative
Remove the attorney-client privilege redactions from
the email chains attached as Exhibits K and L to the
Declaration of James M. Lemonedes dated April 28,
2017, and produce those email chains to the
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