Winfield et al v. City Of New York
OPINION AND ORDER re: 136 LETTER MOTION for Discovery regarding plaintiffs' oral request to post on ECF a preliminary expert report based on confidential data addressed to Magistrate Judge Katharine H. Parker from William H. Vidal dated June 12, 2017. filed by City of New York. Plaintiffs' request is denied. It is premature at this stage of the litigation to lift the Protective Order as to the preliminary expert report. See In re Terrorist Attacks on Sept. 11, 2001, 45 4 F. Supp. 2d at 222 (a "court may impose an initial protective order based upon a general showing of good cause, and may modify that order at a later time if more specific grounds for its continuance remain indiscernible"). If and when final expert reports may need to be filed with the Court, the parties can address whether the Protective Order should be lifted and the reports publicly filed. In the meantime, analyses of the confidential affordable housing lottery data will remain subject to the Protective Order. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 7/5/17) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JANELL WINFIELD, TRACEY STEWART,
and SHAUNA NOEL
OPINION AND ORDER
15-cv-05236 (LTS) (KHP)
-againstCITY OF NEW YORK,
KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
At a discovery conference before this Court on June 5, 2017, counsel for Plaintiffs
Janell Winfield, Tracey Stewart and Shauna Noel moved for permission to file on ECF a
preliminary expert report. The report is covered by a Protective Order issued by this
Court on February 2, 2017 (Doc. No. 82), which restricts disclosure of analyses of certain
confidential data except to counsel for the parties, employees and witnesses involved in
this litigation, experts, and Court personnel. For the reasons set forth below, Plaintiffs’
request is denied.
This case concerns a challenge to a New York City policy regarding affordable
housing lotteries. The City’s policy allocates 50% of units in affordable housing lotteries
to individuals who already reside in the community district where the new affordable
housing units are being built. This policy is referred to herein as the “community
Plaintiffs are three African-American residents of New York City who have
applied for but never received low-income housing through a housing lottery. They
state that New York City neighborhoods are highly segregated by race. Further, they
contend that “neighborhoods of opportunity” (defined as those with high-quality
schools, nicer parks, lower crime rates, among other favorable attributes) are
predominantly white, whereas less desirable neighborhoods are predominantly nonwhite. Plaintiffs contend the community preference policy prevents African-Americans
and Latinos from competing equally for affordable housing in, and gaining entrance to,
better neighborhoods – the neighborhoods of opportunity. (Doc. No. 16, First Amended
Complaint ¶¶ 1, 2, 6, 7). They also assert the policy perpetuates and exacerbates
segregation in neighborhoods throughout New York City. Hence, they contend that the
policy discriminates against them and others because of race in violation of the federal
Fair Housing Act, 42 U.S.C. § 3604, and New York City Human Rights Law, NYC Admin.
Code § 8-107. They assert both intentional and disparate impact theories of
The City denies the allegations of discrimination and asserts that the community
preference policy is lawful. In connection with a motion to dismiss that was denied by
the Honorable Laura Taylor Swain (Doc. No. 42), the City submitted the declaration of
Vicki Been, former Commissioner of the City’s Department of Housing Preservation and
Development (“HPD”), who explained that the community preference policy “is
intended to ensure that local residents, many of whom have deep roots in the
community and have persevered through years of unfavorable living conditions, are
able to remain in their neighborhoods as those neighborhoods are revitalized.” (Doc.
No. 18 ¶ 8). Former Commissioner Been also explained that “neighborhoods
throughout the City and their elected representatives often resist approving land use
actions required to allow greater density or site affordable housing because of concern
about the other types of burdens that development may impose.” (Doc. No. 18 ¶ 8).
The community preference policy, she explained, “makes it possible for the City to
overcome that resistance and achieve its ambitious affordable housing goals despite
neighborhoods’ understandable concerns about the difficulties that new construction
and growth may pose.” (Doc. No. 18 ¶ 8). In short, the City contends the policy is
needed to overcome resistance to building more affordable housing.
After Judge Swain denied the City’s motion to dismiss, the parties commenced
discovery in earnest. Early in the discovery process, and in order to facilitate the
exchange of information, the parties attempted to negotiate a stipulation of
confidentiality and proposed protective order. In a conference before this Court
concerning the protective order, the City expressed concern over producing raw data
about individuals who apply for affordable housing. This data is not available to the
general public through the Freedom of Information Law (“FOIL”) in order to both
safeguard the confidentiality of highly sensitive private information and prevent the
incorrect manipulation of complex, sensitive data. Ultimately, on February 10, 2017,
this Court found that there was good cause for entry of a Protective Order governing
discovery and signed a Protective Order explicitly providing that “[a]ny information,
including but not limited to analyses derived from or obtained about the [data], will
solely be used in connection with the action and subject to the terms” of the Protective
Order. (Doc. No. 82, Appendix A at ¶ 4). This Court ruled, however, that Plaintiffs
would be permitted to seek leave to publicly file their data analyses later in the
litigation, if necessary. (Doc. No. 85 at 19:23-20:22). The City then produced a
substantial portion of the affordable housing lottery data pursuant to the Protective
Plaintiffs commenced analysis of the data produced by the City in anticipation of
the need to present statistical evidence as part of their case in chief. Several days
before a June 5, 2017 conference scheduled to discuss discovery motions related to the
timing and production of documents and depositions, Plaintiffs submitted for in camera
review a preliminary expert report containing initial analyses of the data exchanged in
discovery. The analyses go to Plaintiffs’ arguments on the merits of their claim, but
were submitted to this Court purportedly to justify expediting discovery. In reality, the
analyses were irrelevant to the discovery issues before the Court. At the discovery
conference, Plaintiffs orally requested that they be permitted to publicly file their
preliminary expert analyses on ECF. The City objected to Plaintiffs’ request because,
among other reasons, the exchange of expert reports is not contemplated until a later
phase in discovery, the City believes Plaintiffs’ preliminary report is misleading and
based on incomplete data, and the analyses are subject to the Protective Order. The
City explained it is still confirming the accuracy of the data produced, obtaining answers
to questions from Plaintiffs about the data, and preparing to produce the remaining
data. This Court then ordered further briefing on whether this Court’s Protective
Order’s restriction on publication of Plaintiffs’ preliminary expert report should be lifted.
In their letter brief, Plaintiffs argue that good cause does not exist for their
preliminary expert report to be subject to the Protective Order, citing In re Terrorist
Attacks on Sept. 11, 2001, 454 F. Supp. 2d 220, 222 (S.D.N.Y. 2006) (“holding that,
‘[o]rdinarily,’ good cause for a protective order requires a showing of ‘clearly defined,
specific and serious injury’”). (Doc. No. 138 p. 1). They also contend that because the
report was submitted to this Court in connection with a discovery dispute, it is a “judicial
document” subject to a presumption of public access.
The City argues that good cause remains for the preliminary expert report to be
protected as confidential because:
The data analyses in the report are subject to a Protective Order entered to
facilitate and manage discovery;
The preliminary analyses do not analyze the totality of relevant data, are
misleading, and flawed analytically;
The City has not had an opportunity to review and respond to the analyses;
The filing of a preliminary report and acceleration of expert discovery will
undermine and interfere with the parties efforts to settle the matter;
The request to publicly file the analyses is made to titillate the public and wage a
media campaign; and
The analyses are based on non-public data which is private to avoid incorrect
manipulation and analyses.
Having considered both parties’ arguments, the Court’s decision denying
Plaintiffs’ request is discussed below.
The trial court has substantial latitude to fashion protective orders. Seattle
Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984); see also In re Zyprexa Injunction, 474 F.
Supp. 2d 385, 415 (E.D.N.Y. 2007). Although Federal Rule of Civil Procedure 26(c)(1)
requires good cause for issuance of a protective order, in complex cases such as this
one, the Court has discretion to provide for broad protection of discovery during the
pretrial stages of litigation even absent a highly particularized finding of good cause. In
re Terrorist Attacks on Sept. 11, 2001, 454 F. Supp. 2d at 222. This is so because under
the Federal Rules of Civil Procedure, parties are entitled to broad discovery. These rules
have a potential for abuse. There is an opportunity for litigants to obtain information
about each other and non-parties that is tangential, sensitive and confidential, as well as
information that if publicly released, could be damaging to a party’s reputation or
exploited for improper purposes. See United States v. Amodeo, 71 F.3d 1044, 1051 (2d
Cir. 1995) (“courts have the power to insure that their records are not ‘used to gratify
private spite or promote public scandal’”) (quoting Nixon v. Warner Commc’ns, Inc., 435
U.S. 589, 598 (1978)).
The Second Circuit also has recognized that protective orders serve “the vital
function . . . of ‘secur[ing] the just, speedy, and inexpensive determination’ of civil
disputes . . . by encouraging full disclosure of all evidence that might conceivably be
relevant. This objective represents the cornerstone of our administration of civil
justice.” S.E.C. v. TheStreet.com, 273 F.3d 222, 229 (2d Cir. 2001) (quoting Martindell v.
Int'l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979)). Parties and witnesses may be
more forthcoming in discovery when a protective order is in place and a protective
order may help facilitate settlement. See id. at 230; see also In re Zyprexa Prods. Liab.
Litig., No. 04-MD-1596, 2004 WL 3520247, at *1 (E.D.N.Y. Aug. 9, 2004) (stating that the
purposes of the protective order are “[t]o expedite the flow of discovery material,
facilitate the prompt resolution of disputes over confidentiality, adequately protect
confidential material, and ensure that protection is afforded only to material so entitled
. . .”); Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982) (protective orders are “useful to
prevent discovery from being used as a club by threatening disclosure of matters which
will never be used at trial.”).
Given the City’s stated concerns about the confidential nature of the affordable
housing data – which includes sensitive personal data about affordable housing
applicants – and misuse or public disclosure of such data, as well as this Court’s desire to
reduce conflicts about and expedite production of confidential information and to
manage discovery in carefully planned stages, this Court already found there was good
cause for the issuance of the Protective Order governing discovery in this case. The
Order explicitly protects the affordable housing data and analyses derived from that
data from disclosure. Good cause existed for the data analyses specifically because the
public generally is not entitled to obtain affordable housing data for analyses and it
contains highly sensitive information.
Public Right of Access to Litigation Documents
It is well established that the public has no right to access information obtained
through discovery and that is subject to a protective order. See, e.g., Seattle Times Co.,
467 U.S. at 32-36 (“A litigant has no First Amendment right of access to information
made available only for purposes of trying his suit.”). Indeed, the majority of documents
and information exchanged in discovery are never even submitted to the Court in
connection with dispositive motions or trial. In contrast, there is a presumption of a
public right of access to “judicial documents.” Dorsett v. Cnty. of Nassau, 762 F. Supp.
2d 500, 516-17 (E.D.N.Y. 2011). Judicial documents consist of testimony or documents
that a court relies on to perform its Article III duties and substantively adjudicate a
matter. See, e.g., Amodeo, 71 F.3d at 1048-50; Lugosch v. Pyramid Co. of Onondaga,
435 F.3d 110, 119 (2d Cir. 2006). Judicial documents are presumptively public so that
the federal courts “have a measure of accountability” and so that the public may “have
confidence in the administration of justice.” Amodeo, 71 F.3d at 1048. Additionally,
litigants have a First Amendment right to speak. Seattle Times Co., 467 U.S. at 36. Thus,
a threshold issue this Court must address is whether the preliminary expert report
Plaintiffs seek to file publicly on ECF is a judicial document, because the standard for
sealing a judicial document is higher than the standard for issuing a protective order
In determining whether a document is a judicial record, the Court must evaluate
the “relevance of the document’s specific contents to the nature of the proceeding” and
the degree to which “access to the [document] would materially assist the public in
understanding the issues before the . . . court, and in evaluating the fairness and
integrity of the court’s proceedings.” Newsday LLC v. Cnty. of Nassau, 730 F.3d 156,
166-67 (2d Cir. 2013). The mere filing of a paper or document with the court, however,
is insufficient to render it a judicial document. United States v. Amodeo, 44 F.3d 141,
145 (2d. Cir. 1995). The document filed “must be relevant to the performance of the
judicial function and useful in the judicial process” for it to be designated as a judicial
document. Id. Material designated as confidential under a protective order governing
discovery “might not overcome the presumption of public access once it becomes a
judicial document.” Dodona I, LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d 152, 155
In this case, Plaintiffs filed the preliminary expert report in connection with a
discovery dispute. While there is no question that statistical analysis of the affordable
housing lottery data is an essential component of Plaintiffs’ case on the merits, 1 the
preliminary analyses were not relevant to the discovery issues before this Court. Thus,
under applicable Second Circuit law, the preliminary expert report is not a judicial
document. See Newsday LLC, 730 F.3d at 166-67; see also Standard Inv. Chartered, Inc.
v. Nat’l Ass’n of Secs. Dealers, Inc., 621 F. Supp. 2d 55, 66 (S.D.N.Y. 2007) (documents
submitted in connection with Rule 12(b)(6) motion do not qualify as judicial documents
because they are excluded from the court’s purview and are of no value to someone
wishing to evaluate the court’s decision).
Further, even assuming Plaintiffs’ preliminary expert report were relevant to the
discovery disputes decided by this Court, at least one court in this District has held that
“discovery materials filed with the court in connection with discovery-related disputes
are not covered by the qualified right of access.” United States v. Smith, 985 F. Supp. 2d
506, 520 (S.D.N.Y. 2013). While the Second Circuit has not explicitly held that
documents submitted in connection with discovery motions are not judicial documents,
both the Ninth and the Third Circuit have so held. Leucadia, Inc. v. Applied Extrusion
Techs., Inc., 998 F.2d 157, 165 (3d Cir. 1993) (holding that there is no presumptive right
Plaintiffs must prove their theory of disparate impact discrimination by statistical proof of disparate
impact. Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S.Ct. 2507, 2523-24
(2015) (holding that disparate impact discrimination claims may be brought under the federal Fair
Housing Act and discussing plaintiff’s burden of showing racial disparity through statistics as part of prima
facie case). Statistical proof is often part of a plaintiff’s evidence in support of an intentional
discrimination claim as well. United States v. City of New York, 717 F.3d 72, 84 (2d Cir. 2013) (recognizing
that statistics may be used to prove intentional discrimination) (citing Hazelwood Sch. Dist. v. United
States, 433 U.S. 299, 307-08 (1977)).
of public access to materials right in connection with discovery motions); Kamakana v.
City & Cnty. of Honolulu, 447 F.3d 1172, 1179-80 (9th Cir. 2006) (finding exception to
presumption of access for sealed discovery documents attached to non-dispositive
motions); see also Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir.
2003); Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir.
2002). This Court likewise holds that documents filed with the court in connection with
discovery-related disputes are not judicial documents.
There is good reason for excluding documents filed in connection with discovery
matters from the definition of judicial documents. During discovery, the parties are
simply exchanging information, developing claims and defenses, learning information
relevant to settlement and identifying possible exhibits for trial. Many documents
exchanged in discovery, even if relevant, may never be admitted in trial or in connection
with a dispositive motion. This is also true of expert opinions. In a later phase of
discovery in this case, final expert reports will be exchanged, expert depositions will be
conducted, and motions may be filed to exclude expert testimony at trial or in
connection with summary judgment motions pursuant to Federal Rule of Evidence 702
and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 2
This Court has been closely managing discovery in this case, including by
implementing a phased discovery schedule to focus the parties on exchanging key
Expert reports themselves are typically the subject of hearsay objections and not admitted into evidence
at trial. See Murphy v. Metro. Trans. Auth., No. 05-cv-376 (LMM), 2009 WL 1044604, at *5 (S.D.N.Y. Apr.
documents and information and minimizing disputes over issues that will not ultimately
advance the litigation. Through their motion, Plaintiffs seek to accelerate disclosure of
expert opinions and reveal their characterizations of underlying confidential data to the
public in contravention of the phased discovery plan implemented by this Court.
Permitting Plaintiffs to publicly file their preliminary analyses now would thwart
the spirit and objectives of the Court’s phased discovery plan because, as the City has
articulated, it has a serious concern about data being analyzed incorrectly and being
placed into the public sphere without having an opportunity to contemporaneously
refute Plaintiffs’ analyses. Although no personally identifying information is contained in
the analyses, there is no dispute that the data is not available to the public even in the
aggregate. At this juncture in discovery, this Court does not see any legitimate reason
for the City to focus its efforts on preparing a rebuttal to Plaintiffs’ preliminary analyses.
Rather, the Court has ordered the parties to complete document production and
depositions of key witnesses. And, while the Court has encouraged the parties to begin
data analysis, neither party has completed – or can complete – its analyses until all of
the data is produced and questions about it are answered. Plaintiffs’ expert’s
preliminary opinions are certainly not ones that will ultimately be admitted at trial.
Moreover, while it is conceivable that final expert reports, or portions of them, may be
filed with the Court at a later date in connection with evidentiary or dispositive motions,
it is also conceivable that expert reports and analyses may be stricken. 3 In sum, it is
premature at this stage of the litigation to lift the Protective Order as to the preliminary
expert report. See In re Terrorist Attacks on Sept. 11, 2001, 454 F. Supp. 2d at 222 (a
“court may impose an initial protective order based upon a general showing of good
cause, and may modify that order at a later time if more specific grounds for its
continuance remain indiscernible”).
If and when final expert reports may need to be filed with the Court, the parties
can address whether the Protective Order should be lifted and the reports publicly filed.
In the meantime, analyses of the confidential affordable housing lottery data will remain
subject to the Protective Order.
Dated: July 5, 2017
New York, New York
KATHARINE H. PARKER
United States Magistrate Judge
This Court makes no findings whatsoever about the outcome of potential future motions regarding
statistical analyses. Nor has this Court analyzed the substantive arguments made by the parties in their
letters (Doc. Nos. 136 and 138) about the validity of the preliminary analyses.
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