Winfield et al v. City Of New York
Filing
259
OPINION AND ORDER. Plaintiffs' objections to the City's clawback demand are DENIED; Plaintiffs' objections to the City's privilege log are GRANTED in part and DENIED in part; and the City's assertions of privilege during de positions are SUSTAINED in part and OVERRULED in part. The City is directed to produce the documents Bates-stamped NYC _0067301, NYCPRIV01218, NYCPRIV01728, NYCPRIV00090, NYCPRIV02127, NYCPRIV01387, NYCPRIV01840, and NYCPRIV02361, as well as redacted copies of the documents Bates-stamped NYCPRIV00548, NYC_0056994, NYCPRIV00399, and NYCPRIV00726 in accordance with this opinion. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 2/1/18) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JANELL WINFIELD, TRACEY STEWART,
and SHAUNA NOEL,
Plaintiffs,
02/01/2018
OPINION AND ORDER
15-cv-05236 (LTS) (KHP)
-againstCITY OF NEW YORK,
Defendant.
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KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Plaintiffs commenced this action to challenge 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 located. This policy is referred to herein as the “Community Preference
Policy.” Plaintiffs allege that the Community Preference Policy violates the federal Fair Housing
Act (“FHA”), 42 U.S.C. § 3604 et seq., and the New York City Human Rights Law (“NYCHRL”), NYC
Admin. Code § 8-107, et seq., because it perpetuates racial segregation and disparately impacts
racial minorities. They also claim that the City’s decision to establish, expand, and maintain the
policy constitutes intentional discrimination.
Currently pending before this Court is a series of related disputes over the City’s claims
of privilege. These disputes concern: (1) Plaintiffs’ objections to the City’s demand to claw back
a document that the City produced but claims is protected by the deliberative process privilege;
(2) Plaintiffs’ objections to the City’s claims of deliberative process privilege, legislative
1
privilege, work product privilege, and/or attorney-client privilege over documents listed on its
privilege log; and (3) the City’s invocations of the deliberative process privilege, work product
privilege, and/or attorney-client privilege during the depositions of former Commissioner of the
City’s Department of Housing Preservation and Development (“HPD”) Vicki Been and former
Chairman of the City Planning Commission and Director of the City’s Department of City
Planning (“DCP”) Carl Weisbrod. For the reasons that follow, Plaintiffs’ objections to the City’s
clawback demand are denied, Plaintiffs’ objections to the City’s Privilege Log are granted in part
and denied in part, and the City’s assertions of privilege during depositions are sustained in part
and overruled in part.
BACKGROUND
The facts pertaining to the underlying action have been set forth in the Court’s prior
decisions. See Winfield v. City of New York, No. 15-cv-5236 (LTS) (DCF), 2016 WL 6208564, at *13 (S.D.N.Y. Oct. 24, 2016); Winfield v. City of New York, No. 15-cv-5236 (LTS) (KHP), 2017 WL
5664852, at *1-6 (S.D.N.Y. Nov. 27, 2017); see also Winfield v. City of New York, No. 15-cv-5236
(LTS) (KHP), 2017 WL 2880556, at *1-2 (S.D.N.Y. July 5, 2017), objections overruled by 2017 WL
5054727, at *1-2 (S.D.N.Y. Nov. 2, 2017). Only the facts relevant to this motion are set forth
below.
A. HUD Compliance Review
In September 2013, the Office of Fair Housing and Equal Opportunity of the U.S.
Department of Housing and Urban Development (“HUD”) notified the City that it was
commencing a compliance review of HPD and DCP. The purpose of the review was to ensure
2
that HPD and DCP were in compliance with certain federal nondiscrimination statutes as well as
to ensure that the City was meeting its obligation to affirmatively further fair housing. In
particular, HUD was investigating the City’s policies and practices regarding the development of
affordable housing. The City represents that this compliance review is ongoing.
In connection with the review, HUD requested that the City submit an array of
information and data about its housing policies and practices. Terri Feinstein Sasanow, then
Assistant Corporation Counsel in the Legal Counsel Division of the New York City Law
Department (“Law Department”) and Chief of the Grants and Compliance Unit, who was closely
involved in formulating the City’s strategies, defenses, and settlement proposals for the review,
stated in her declaration that she was concerned the compliance review could lead to litigation
against the City by HUD or others. In an attempt to settle the investigation and avoid litigation,
HPD and HUD engaged in more than one round of discussions regarding potential modifications
to the Community Preference Policy.
Both Ms. Sasanow and Ms. Been state in their declarations that they understood that
HUD considered the compliance review to be a non-public, confidential investigation and that
all documents and communications exchanged in connection therewith would be kept
confidential. They also point out that communications with HUD state the City’s understanding
that the compliance review process and related communications would be kept confidential.
According to the City, HUD did not inform HPD that its understanding was incorrect or that
discussions and documents exchanged in the review were not confidential. Ms. Sasanow also
requested the complaint that triggered the compliance review under the Freedom of
3
Information Act (“FOIA”), but her request was denied by HUD based on an assertion of the
confidentiality of an ongoing law enforcement investigation.
B. Clawback Demand
During a conference on June 5, 2017, Plaintiffs’ counsel handed up to the Court several
documents that the City had produced in discovery in redacted form, including a presentation
Bates-stamped 21052-21089 entitled “Affirmatively Furthering Fair Housing: A Preliminary
Guide to NYC’s Submission.” As the title suggests, the presentation is a preliminary overview of
the City’s prospective submission in response to HUD’s new Affirmatively Furthering Fair
Housing (“AFFH”) rule, which requires HUD program participants, such as New York City, to
submit an Assessment of Fair Housing (“AFH”) in 2019. Upon reviewing the presentation,
counsel for the City indicated that she believed the document should have been withheld in its
entirety on privilege grounds and that it had been inadvertently produced.
The City subsequently served Plaintiffs with a letter seeking to claw back the document
Bates-stamped 21052-21089 as well as what appears to be an identical document that was
produced and Bates-stamped 22822-22859 (collectively, the “AFFH Presentations”), pursuant
to a Protective Order in place in this case. (See Doc. No. 76.) The City asserted that the AFFH
Presentations were not responsive and, furthermore, were largely protected by the deliberative
process privilege.
Plaintiffs objected to the City’s clawback demand and sought a ruling on the issue.
Plaintiffs argue that the AFFH Presentations are responsive to their discovery requests and
relevant to the issues in this case because they reference, inter alia, community opposition to
4
the development of affordable housing and levels of segregation within the City. With respect
to privilege, Plaintiffs assert that: (i) since the City’s decisionmaking process is at issue in this
litigation, the deliberative process privilege cannot be invoked to preclude discovery; (ii) even if
the privilege can be asserted in this case, it does not apply to the AFFH Presentations; and (iii)
the City failed to properly present its privilege claim.
In its response, the City points out this Court previously limited discovery concerning
AFFH to only those documents that “discuss or consider AFFH obligations in the context of the
community preference policy.” (See Doc. No. 87, Transcript from Feb. 16, 2017 conference at
38:14-21.) The City contends that, in light of this ruling, the AFFH Presentations are not
responsive because they make only passing references to the Community Preference Policy and
do not substantively address the Policy. It also claims that the deliberative process privilege
may be invoked in this case and that the privilege applies to the AFFH Presentations. The City
argues that the privilege must be upheld in order to ensure that policymakers can have open
and honest deliberations in connection with making policy decisions.
In opposition to Plaintiffs’ objections to the City’s clawback demand, the City also
submitted a Declaration of David Quart, the Deputy Commissioner for Strategy, Research and
Communications of HPD. Quart averred that the AFFH Presentations were created by HPD’s
Division of Strategic Planning (“Strategic Planning”), with his input and oversight, to facilitate
discussions about HPD’s and the City’s response to the new AFFH rule. Upon the Court’s
request, the City provided an unredacted copy of the AFFH Presentation for in camera review.
5
C. City’s Privilege Log
In addition to challenging the City’s claim of privilege over the AFFH Presentations,
Plaintiffs also have repeatedly asserted that the City has over-designated other responsive
documents as privileged, particularly with respect to the deliberative process privilege. During a
conference on July 21, 2017, the Court directed Plaintiffs to identify a subset of 80 documents
from the City’s privilege log that the City had withheld on the basis of the deliberative process
privilege. (Doc. No. 167 at 74:16-18.) The Court further ruled that the City would have an
opportunity to re-review the 80-document subset identified by Plaintiffs and determine
whether it intended to maintain its privilege claim as to each document.
Following the City’s review of the sample set of 80 documents, the City advised that it
maintained a claim of privilege(s) over only 27 documents. It also withdrew its privilege
designation as to 51 documents and produced them. This Court subsequently ordered the City
to submit all 80 documents to this Court for in camera review as well as a more detailed log for
purposes of assessing the validity of the remaining privilege designations. The City submitted
the documents and detailed privilege log, according to which the City maintains privilege
assertions with respect to the following documents:
Bates Number
NYCPRIV00017
NYC _0067301
NYCPRIV01218
NYCPRIV01728
NYCPRIV00090
NYCPRIV00548
NYCPRIV02127
NYCPRIV00242
NYCPRIV00845
Privilege(s) Claimed
Deliberative Process; Work Product
Legislative
Legislative
Legislative
Deliberative Process
Deliberative Process
Legislative
Deliberative Process; Work Product
Work Product
6
NYCPRIV00885
NYCPRIV01023
NYCPRIV00726
NYCPRIV00731
NYCPRIV00183
NYCPRIV01556
NYCPRIV00218
NYCPRIV01648
NYC_0056994
NYCPRIV02154
NYCPRIV01387
NYCPRIV01399
NYCPRIV00281
NYCPRIV00393
NYCPRIV01840
NYCPRIV00399
NYC_0067432
NYCPRIV02361
Deliberative Process
Deliberative Process
Deliberative Process
Deliberative Process; Legislative
Deliberative Process
Deliberative Process; Attorney-Client; Work Product
Deliberative Process; Work Product
Deliberative Process; Work Product
Deliberative Process; Work Product
Work Product
Work Product
Deliberative Process; Work Product
Deliberative Process; Work Product
Deliberative Process; Work Product
HUD Confidentiality
Deliberative Process
Work Product
Deliberative Process
D. Privilege Assertions Raised During Depositions
On July 27, 2017 and August 2, 2017, Plaintiffs conducted the depositions of Mr.
Weisbrod and Ms. Been, respectively. During both depositions, counsel for the City directed the
witnesses not to respond to certain questions on the basis of attorney-client, work product,
and/or deliberative process privilege. Pursuant to the Court’s directions, the parties did not
seek immediate privilege rulings from the Court during the depositions and, instead, continued
the depositions and raised disputes as to the claims of privilege after the depositions had
concluded. On September 1, 2017, Plaintiffs submitted a letter to the Court seeking privilege
rulings on 20 questions to which the City’s witnesses were directed not to respond –
specifically, four questions posed to Mr. Weisbrod and 16 questions directed to Ms. Been.
Plaintiffs’ submission also annexed copies of the deposition transcripts and relevant exhibits.
7
The City subsequently withdrew its privilege objections as to the four questions directed
at Mr. Weisbrod, as well as to Been Deposition Question Nos. 15 and 16, and provided Plaintiffs
with responses to these questions in declarations. The City maintained its privilege objections
to the following 14 questions posed to Ms. Been:
ID No.
Been No. 1
Been No. 2
Been No. 3
Been No. 4
Been No. 5
Been No. 6
Been No. 7
Been No. 8
Been No. 9
Been No. 10
Been No. 11
Been No. 12
Been No. 13
Been No. 14
Transcript Citation
39:25 - 41:11
69:12 - 70:12
178:4 - 180:8
180:9 - 184:3
184:18 - 185:17
223:18 - 224:17
224:18 - 225:6
227:23 - 228:11
228:19 - 229:20
236:12 - 237:23
262:9 - 265:17
275:10 - 280:16
280:20 - 282:15
282:16 - 283:23
Privilege(s) Claimed
Work Product
Deliberative Process
Deliberative Process; Attorney-Client; Work Product
Deliberative Process; Attorney-Client; Work Product
Deliberative Process; Attorney-Client; Work Product
Attorney-Client; Work Product
Attorney-Client; Work Product
Attorney-Client
Deliberative Process; Work Product
Deliberative Process; Attorney-Client; Work Product
Attorney-Client
Work Product
Attorney-Client; Work Product
Attorney-Client
At the Court’s direction, the City submitted a privilege log stating the basis for its
objections. Ms. Been also explained some of the claims of privilege in her declaration, dated
October 6, 2017.
LEGAL STANDARDS
A.
Federal Rule Of Civil Procedure 26
Under Federal Rule of Civil Procedure 26(b) (“Rule 26”), “[p]arties may 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
8
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.” Fed. R. Civ. P.
26(b)(1). The party seeking discovery bears the initial burden of proving the discovery is
relevant, and then the party withholding discovery on the grounds of burden, expense,
privilege, or work product bears the burden of proving the discovery is in fact privileged or work
product, unduly burdensome and/or expensive. See Fireman’s Fund Ins. Co. v. Great Am. Ins.
Co. of N.Y., 284 F.R.D. 132, 135 (S.D.N.Y. 2012) (“Once relevance has been shown, it is up to the
responding party to justify curtailing discovery.”) (internal citation omitted); Allison v. Clos-ette
Too, L.L.C., No. 14-cv-1618 (LAK) (JCF), 2015 WL 136102, at *8 (S.D.N.Y. Jan. 9, 2015).
B.
Deliberative Process Privilege
The City asserts that the documents and information at issue in this motion are
protected from disclosure under the deliberative process privilege. The deliberative process
privilege, also referred to as the executive privilege, protects “documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 150 (1975) (internal quotation marks and citation omitted). It applies to both the ultimate
decisionmaking executive and the executive’s staff members. See Hopkins v. H.U.D., 929 F.2d
81, 85 (2d Cir. 1991) (work product, opinions, and recommendations of staff are part of the
deliberative process). It also applies to both inter- and intra-agency deliberative
communications. See In re Delphi Corp., 276 F.R.D. 81, 84 (S.D.N.Y. 2011) (citing Tigue v. U.S.
Dep’t of Justice, 312 F.3d 70, 77 (2d Cir. 2002)).
9
The privilege “‘protects the decisionmaking processes of the executive branch in order
to safeguard the quality and integrity of governmental decisions.’” Marisol A. v. Giuliani, No.
95-cv-10533 (RJW), 1998 WL 132810, at *6 (S.D.N.Y. Mar. 23, 1998) (quoting Hopkins, 929 F.2d
at 84). It is motivated by “the obvious realization that officials will not communicate candidly
among themselves if each remark is a potential item of discovery and front page news” and the
desire to “enhance the quality of agency decisions by protecting open and frank discussion
among those who make them within the Government.” Fed. Hous. Fin. Agency v. HSBC N. Am.
Holdings Inc., No. 11-cv-6189 (DLC), 2014 WL 1909446, at *1 (S.D.N.Y. May 13, 2014) (quoting
Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001)); see also
Marisol A., 1998 WL 132810, at *6 (the deliberative process privilege is premised upon the
notion that “effective decisionmaking requires a free flow of information amongst government
officials and that this free flow would be constrained if these communications had the potential
to be revealed to outsiders”) (internal citations omitted).
The privilege protects the documents and communications used in the decisionmaking
process when such documents are both (1) predecisional and (2) deliberative. Marisol A., 1998
WL 132810, at *6. A document is “predecisional” when it is prepared to aid the decisionmaker
in arriving at a decision. Hopkins, 929 F.2d at 84; Marisol A., 1998 WL 132810, at *6. In
assessing whether a document is predecisional, courts also consider whether the government
can: “(i) pinpoint the specific agency decision to which the document correlates, (ii) establish
that its author prepared the document for the purpose of assisting the agency official charged
with making the agency decision, and (iii) verify that the document precedes, in temporal
10
sequence, the decision to which it relates.” Nat’l Congress for Puerto Rican Rights ex rel Perez v.
City of New York, 194 F.R.D. 88, 92 (S.D.N.Y. 2000) (internal quotation marks and citation
omitted). This analysis is designed to distinguish predecisional documents from those that are
“merely part of a routine and ongoing process of agency self-evaluation,” which are not
covered by the privilege. Tigue, 312 F.3d at 80; see also Charles v. City of New York, No. 11-cv0980 (KAM) (JO), 2011 WL 5838478, at *1 (E.D.N.Y. Nov. 18, 2011).
A document is “deliberative” when it relates to the process by which policies are
formulated. Hopkins, 929 F.2d at 84. “[D]raft documents, by their very nature, are typically
predecisional and deliberative. They reflect only the tentative view of their authors; views that
might be altered or rejected upon further deliberation either by their authors or by superiors.”
Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., No. 11-cv-6749 (RKE), 2015 WL 3404111, at
*3 (S.D.N.Y. May 27, 2015) (internal quotation marks and citation omitted).
Although some district courts within this Circuit have held that the deliberative process
privilege is per se inapplicable in a case where the government’s decisionmaking process itself is
the subject of the litigation, see, e.g., Children First Found., Inc. v. Martinez, No. 04-cv-0927
(NPM/RFT), 2007 WL 4344915, at *7 (N.D.N.Y. Dec. 10, 2007), other courts in this Circuit have
applied a five-factor balancing test to determine whether the deliberative process privilege
should be upheld in such cases. See Rodriguez v. Pataki, 280 F. Supp. 2d 89, 99-101 (S.D.N.Y.
2003) (observing that if the legislative or deliberative privileges were unavailable in any case
where the government’s decisionmaking process was at issue, “there would be few, if any,
cases in which state legislators could shield their personal thought processes from view” and
11
applying a five-factor balancing test to assess whether “‘reason and experience’ suggest[s] that
the claim of privilege should not be honored”); In re Delphi Corp., 276 F.R.D. at 85 (“[t]his Court
concludes that a claimed exception to the privilege, because the litigation ‘involves a question
concerning the intent of the governmental decisionmakers or the decisionmaking process itself’
. . . is subject to the five factor balancing test.”); Five Borough Bicycle Club v. City of New York,
No. 07-cv-2448 (LAK), 2008 WL 4302696, at *1 (S.D.N.Y. Sept. 16, 2008) (observing that “the
difference between the parties as to whether the privilege is categorically inapplicable or
dependent on a balancing of factors where the information sought is important to resolution of
the dispute is more stylistic than substantive”). For the reasons articulated by other courts in
this district, this Court agrees that a balancing approach that considers the competing interests
of the party seeking disclosure and of the government – specifically, its need to engage in
policy deliberations without the omnipresent threat of disclosure – is more appropriate than a
per se rule requiring disclosure in every case where the decisionmaking process is at issue.
In assessing whether and to what extent the privilege bars disclosure, courts “must
balance the extent to which production of the information sought would chill the
[government’s] deliberations concerning such important matters . . . against any other factors
favoring disclosure.” Rodriguez, 280 F. Supp. 2d at 100-01. Relevant factors for the Court to
consider include:
(i) the relevance of the evidence sought to be protected; (ii) the availability of
other evidence; (iii) the ‘seriousness’ of the litigation and the issues involved; (iv)
the role of the government in the litigation; and (v) the possibility of future timidity
by government employees who will be forced to recognize that their secrets are
violable.
12
Id. (quoting In re Franklin Nat’l Bank Secs. Litig., 478 F. Supp. 577, 583 (E.D.N.Y. 1979)).
C.
Legislative Privilege
The City next asserts that some of the documents listed on its privilege log are protected
under the legislative privilege. The concept of legislative privilege, and the parallel doctrine of
legislative immunity, “developed in sixteenth- and seventeenth-century England as a means of
curbing monarchical overreach, through judicial proceedings, in Parliamentary affairs.” Favors
v. Cuomo, 285 F.R.D. 187, 207 (E.D.N.Y. 2012) (“Favors I”) (citing United States v. Johnson, 383
U.S. 169, 177-80 (1966); Tenney v. Brandhove, 341 U.S. 367, 372 (1951)). For federal legislators,
the privilege is enshrined in the Speech or Debate Clause of the federal Constitution, which
provides that “for any Speech or Debate in either House, [Members of Congress] shall not be
questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1. The Clause has been construed as
providing Members of Congress with two distinct, but related, absolute protections: (1)
immunity from suit for their legislative acts and (2) protection from being compelled to testify
in court and produce information about acts that fall within the “legitimate legislative sphere.”
See, e.g., Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 503 (1975); Supreme Ct. of Va. v.
Consumers Union of U.S., Inc., 446 U.S. 719, 731-33 (1980); Gravel v. United States, 408 U.S.
606, 613-16 (1972); United States. v. Brewster, 408 U.S. 501, 525 (1972); see also Sec. & Exch.
Comm’n v. Comm. on Ways & Means of the U.S. House of Representatives, 161 F. Supp. 3d 199,
242 (S.D.N.Y. 2015) (the “[t]estimonial privilege is thus at the heart of the Speech or Debate
Clause protections.”).
13
The Speech or Debate Clause, by its own terms, is limited to Members of Congress.
Based on principles of comity, however, the Supreme Court has held that state and local
legislators, like Members of Congress, are entitled to absolute “immunity from liability for their
legislative acts” as a matter of federal common law. Supreme Ct. of Va., 446 U.S. at 732-33
(citing Tenney, 341 U.S. at 379); Bogan v. Scott-Harris, 523 U.S. 44, 48-49 (1988); see also
Rodriguez, 280 F. Supp. 2d at 94-95 (explaining that “[t]he doctrine of absolute immunity for
state legislators is an outgrowth of the Speech or Debate Clause of the United States
Constitution”). In Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267-68
(1977), the U.S. Supreme Court implicitly recognized in dicta that the common law legislative
privilege also extends to protection from compelled testimony in civil cases. The Second Circuit
likewise has recognized the shared origins of and justifications for the Speech or Debate Clause
protections and common law protections afforded to state lawmakers. See Star Distribs., Ltd. v.
Marino, 613 F.2d 4, 6-9 (2d Cir. 1980) (holding that because of the privileges’ common roots, it
is inappropriate to “differentiate the scope of the two without good reason”). District courts
within the Second Circuit also have repeatedly held that state and local lawmakers are entitled
to protection against discovery into their legislative acts in civil cases, explaining that such
protection is needed to “shield legislators from civil proceedings which disrupt and question
their performance of legislative duties to enable them to devote their best efforts and full
attention to the public good.” See, e.g., Searingtown Corp. v. Inc. Vill. of N. Hills, 575 F. Supp.
1295, 1299 (E.D.N.Y. 1981) (precluding discovery into motivation of local legislators for rezoning
decision that plaintiffs claimed violated their constitutional rights) (internal quotation marks
14
and citations omitted); see also ACORN v. Cnty. of Nassau, No. 05-cv-2301 (JFB) (WDW), 2007
WL 2815810, at *2 (E.D.N.Y. Sept. 25, 2007). The legislative privilege extends to both the
legislator and legislative staff. See Ways & Means, 161 F. Supp. 3d at 233. However, the
privilege is “a personal one,” meaning that it can only be asserted, or alternatively, waived, by
each individual lawmaker. See Favors v. Cuomo, No. 11-cv-5632 (DLI) (RR) (GEL), 2015 WL
7075960, at *8-9 (E.D.N.Y. Feb. 8, 2015) (“Favors III”).
Legislative acts that are protected under the privilege include any activity that is “‘an
integral part of the deliberative and communicative processes by which Members participate in
committee and House proceedings with respect to the consideration and passage or rejection
of proposed legislation or with respect to other matters which the Constitution places within
the jurisdiction of either House.’” Eastland, 421 U.S. at 504 (quoting Gravel, 408 U.S. at 625 and
citing McMillan, 412 U.S. at 313); see also Bogan, 523 U.S. at 54-55 (actions are legislative in
nature when they are “integral steps in the legislative process”). For example, legislative acts
may include, but are not limited to: “delivering an opinion, uttering a speech, or haranguing in
debate; proposing legislation; voting on legislation; making, publishing, presenting, and using
legislative reports; authorizing investigations and issuing subpoenas; and holding hearings and
introducing material at committee hearings.” Ways & Means, 161 F. Supp. 3d at 236 (citing
Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 10-11 (D.C. Cir. 2006)) (internal quotation
marks omitted).
The legislative privilege also protects fact- and information-gathering activities about
the subject of potential legislation, as well as documents regarding or reflecting the fruits of this
15
research. See id. at 236-37, 245; see also United States v. Biaggi, 853 F.2d 89, 102-03 (2d Cir.
1988) (holding that legislative fact-finding activity is protected under the Speech or Debate
Clause); McSurely v. McClellan, 553 F.2d 1277, 1286 (D.C. Cir. 1976) (en banc) (“information
gathering, whether by issuance of subpoenas or field work by a Senator or his staff, is essential
to informed deliberation over proposed legislation” and hence is protected legislative activity),
cert. dismissed, 438 U.S. 189 (1978). The gathering of facts and other information—whether by
formal means, such as a subpoena, or informal means, such as field work—is protected because
“[a] legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change.” Eastland, 421
U.S. at 504 (citation omitted); see also Ways & Means, 161 F. Supp. 3d at 236-37. To the extent
there is a question as to whether particular research activities are privileged, the court must
determine “whether ‘the information is acquired in connection with or in aid of an activity that
qualifies as ‘legislative’ in nature,’ not what the source of the information is.” Ways & Means,
161 F. Supp. 3d at 237 (quoting Jewish War Veterans, 506 F. Supp. 2d at 57). Thus, it is not just
the motives of lawmakers that are protected by the privilege, but factual information as well
(so long as it was collected and summarized in connection with a legislative activity).
Certain routine activities of legislators fall outside of the privilege. See Gravel, 408 U.S.
at 624–25; Biaggi, 853 F.2d at 102. Activities concerning the administration of a law, speeches
delivered outside of the legislative body and preparation for the same, the making of
appointments with government agencies, newsletters and press releases to constituents and
drafts thereof are among the activities that fall outside of the protection of the privilege.
16
Brewster, 408 U.S. at 512; Hutchinson v. Proxmire, 443 U.S. 111, 130-33 (1979). Similarly, the
privilege does not attach to documents or communications that are “merely administrative or
personal in nature.” Ways & Means, 161 F. Supp. 3d at 246 (citing Gov’t of Virgin Islands v. Lee,
775 F.2d 514, 522 (3d Cir. 1985) (“Private conversations—even between officials of
governments—do not necessarily involve official business.”); Fields, 459 F.3d at 11 (personnel
decisions lacking a nexus to legislative acts are beyond the scope of the Clause’s protections)).
Unlike the absolute privilege that is afforded under the Speech or Debate Clause, see
Ways & Means, 161 F. Supp. 3d at 242, the common law legislative privilege is qualified and
“must therefore depend on a balancing of the legitimate interests on both sides.” Rodriguez,
280 F. Supp. 2d at 96; see also Citizens Union of City of N.Y. v. Att’y Gen. of N.Y., No. 16-cv-9592
(RMB) (KHP), 2017 WL 3836057, at *18 (S.D.N.Y. Sept. 1, 2017) (“when there is a challenge to a
claim of legislative privilege by state lawmakers, the court may consider whether the private
parties’ interest in exploring the motivations and fact-finding efforts of individual legislators (1)
rises to a level of public need for full development of relevant facts that is sufficient to
overcome the competing public interests in ensuring that legislators devote their full efforts
and attention to legislative duties; (2) outweighs the threat of chilling legislative deliberations;
and (3) warrants federal intrusion into the independence of state lawmakers.”). Courts in this
Circuit use the same balancing factors to weigh whether the legislative privilege should yield to
the need for discovery as they do when weighing whether the deliberative process privilege
should yield to the need for discovery. See Rodriguez, 280 F. Supp. 2d at 100-01.
17
D.
Work Product Privilege
The work product privilege protects documents and other tangible things “that are
prepared in anticipation of litigation or for trial by or for another party or its representative,”
Fed. R. Civ. P. 26(b)(3)(A), as well as deposition testimony concerning the substance of such
work product. See Bowne of N.Y.C., Inc. v. AmBase Corp., 150 F.R.D. 465, 471 (S.D.N.Y. 1993).
Documents “should be deemed prepared ‘in anticipation of litigation’ . . . if, ‘in light of the
nature of the document and the factual situation in the particular case, the document can fairly
be said to have been prepared or obtained because of the prospect of litigation.’” United States
v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (emphasis in original) (internal citation omitted).
“Where a document was created because of anticipated litigation, and would not have been
prepared in substantially similar form but for the prospect of that litigation,” it is protected as
work product. Id. at 1195. “Conversely, protection will be withheld from ‘documents that are
prepared in the ordinary course of business or that would have been created in essentially
similar form irrespective of litigation.’” Schaeffler v. United States, 806 F.3d 34, 43 (2d Cir. 2015)
(quoting Adlman, 134 F.3d at 1202).
Like the deliberative and legislative process privileges, the protection afforded by the
work product doctrine is not absolute. A party seeking discovery may overcome work product
protection and obtain disclosure of material otherwise discoverable under Fed. R. Civ. P.
26(b)(1) by showing (1) substantial need for the material; and (2) an inability to obtain its
substantial equivalent from another source without undue hardship. Fed. R. Civ. P. 26(b)(3)(A);
Obeid v. Mack, No. 14-cv-6498 (LTS) (HBP), 2016 WL 7176653, at *5 (S.D.N.Y. Dec. 9, 2016).
18
Although factual materials “may generally be discovered upon a showing of substantial need,”
Obeid, 2016 WL 7176653, at *5 (internal quotation marks and citations omitted), courts “must
protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of
a party’s attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B)
(emphasis added). Thus, “[d]ocuments or portions of documents that qualify as ‘opinion work
product’ are ‘entitled to virtually absolute protection.’” United States v. Mount Sinai Hosp., 185
F. Supp. 3d 383, 390 (S.D.N.Y. 2016) (quoting United States v. Ghavami, 882 F. Supp. 2d 532,
540 (S.D.N.Y. 2012)).
E.
Attorney-Client Privilege
Finally, the City has invoked the attorney-client privilege in response to certain
deposition questions and as to one document on its privilege log. The attorney-client privilege
is one of the “oldest recognized privileges for confidential communications.” Swindler & Berlin
v. United States, 524 U.S. 399, 403 (1998). The attorney-client privilege “exists for the purpose
of encouraging full and truthful communications between an attorney and his client and
‘recognizes that sound legal advice or advocacy serves public ends and that such advice or
advocacy depends upon the lawyer’s being fully informed by the client.’” In re von Bulow, 828
F.2d 94, 100 (2d Cir. 1987) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). At
the same time, courts should construe assertions of privilege narrowly, sustaining the privilege
“only where necessary to achieve its purpose.” In re Cnty. of Erie, 473 F.3d 413, 418 (2d Cir.
2007) (quoting Fisher v. United States, 425 U.S. 391, 403 (1976)); see also In re Grand Jury
19
Proceedings, 219 F.3d 175, 182 (2d Cir. 2000). The party seeking to invoke the privilege bears
the burden of establishing its applicability. In re Cnty. of Erie, 473 F.3d at 418.
When the government asserts a claim of attorney-client privilege, it must establish: (1) a
communication between government counsel and their clients 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. See id. at 419 (internal citation omitted). “[I]n civil litigation between a government
agency and private litigants, the government’s claim to the protections of the attorney-client
privilege is on a par with the claim of an individual or a corporate entity.” Id.
The question of whether a communication is protected under attorney-client privilege
often turns on whether the communication was made for the purpose of obtaining or providing
legal advice, rather than policy advice. “Fundamentally, legal advice involves the interpretation
and application of legal principles to guide future conduct or to assess past conduct,” and
requires an attorney to rely upon “legal education and experience to inform judgment.” Id.
Accordingly, the key inquiry is whether the “predominant purpose” of the communication is to
solicit or provide legal advice. Id. at 419-20 (collecting cases). When legal advice is the
predominant purpose, “other ‘considerations and caveats’ are not severable and the entire
communication is privileged.” Fox News I, 739 F. Supp. 2d at 560 (citing In re Cnty. of Erie, 473
F.3d at 420). On the other hand, if the legal advice is merely “incidental to the nonlegal advice
that is the predominant purpose of the communication,” then the legal portions of the
document may be redacted. In re Cnty. of Erie, 473 F.3d at 420 n.8.
20
DISCUSSION
A.
The City’s Clawback Demand
The City contends that it should be permitted to clawback the AFFH Presentations
because they are not responsive and, even if they are deemed to be responsive, they are
protected by the deliberative process privilege.
1. Responsiveness
The Court need not spend much time addressing the City’s first argument concerning
responsiveness. While portions of the AFFH Presentations are not relevant to the claims and
defenses in this case, they do contain at least some information that is responsive to Plaintiffs’
discovery requests. By way of one example only, the presentations mention community
opposition to affordable housing, which is one of the City’s primary defenses. The City, in its
responses and objections to Plaintiffs’ discovery requests, agreed to produce documents
regarding opposition by community members to affordable housing. (See Doc. No. 62-2 p. 18).
Other portions of the AFFH Presentations implicate issues that are similarly pertinent to the
claims and defenses in this litigation.
2. Application Of The Deliberative Process Privilege
The City’s assertion that the AFFH Presentations are protected by the deliberative
process privilege is meritorious, however. The presentations are indisputably predecisional, as
they were prepared to aid City decisionmakers in their early policy decisionmaking that will
eventually be reflected in the City’s AFFH submission to HUD, which is not due until 2019. See
Hopkins, 929 F.2d at 84.
21
The presentations also reflect deliberative content. In particular, the City has
represented that the AFFH Presentations were prepared by Strategic Planning and reflect the
preliminary thoughts of that agency alone, not HPD or the City as a whole. (Quart Decl. ¶¶ 713.) It points out, as an example, that the AFFH Presentations reflect Strategic Planning’s
selection of certain “contributing factors” to fair housing issues from a HUD-published list, as
well as Strategic Planning’s early efforts to address issues related to the contributing factors it
selected, but that the presentations do not contain the City’s final decisions or positions on
these matters. (Quart Decl. ¶ 8); see Grand Cent. P’ship, 166 F.3d at 482 (deliberative process
privilege protects “recommendations, draft documents, proposals, suggestions, and other
subjective documents which reflect the personal opinions of the writer rather than the policy of
the agency”).
Additionally, the AFFH Presentations include limited, preliminary analyses of HUDprovided data, identified in the presentations themselves as “Data Issues” and “Preliminary
Findings.” (Quart Decl. ¶ 9.) These “findings” are not the City’s findings on the relevant issues,
nor are they final. (Id.) Rather, the City intends to supplement HUD’s data and to undertake the
comprehensive analyses required by HUD as part of the AFH process. (Id.) The preliminary
analyses “reflect only the tentative view of their authors; views that might be altered or
rejected upon further deliberation either by their authors or by superiors,” and thus are
deliberative in nature. See Auto. Club of N.Y., Inc., 2015 WL 3404111, at *3.
Plaintiffs contend that portions of the presentations, including the slides addressing
Strategic Planning’s selection of “contributing factors,” cannot be protected under the
22
deliberative process privilege because such material is factual, not policy-oriented. This position
oversimplifies the City’s obligations under the AFH, however. The AFH requires participants, like
the City, to prioritize the contributing factors that it identifies and to establish goals for
overcoming the effects of the selected contributing factors, including identifying milestones
and metrics for determining what fair housing results will be achieved. See 22 C.F.R. §
5.154(d)(4). This means that the City’s selection and prioritization of the contributing factors
from HUD’s list are inextricably intertwined with the City’s deliberations over its future fair
housing policies. Thus, Strategic Planning’s selection and discussion of contributing factors is
more akin to an advisory opinion or recommendation, which is privileged, than purely factual
material, which is not. See Grand Cent. P’Ship, 166 F.3d at 482. It is also not clear from the
presentation that the contributing factors selected will ultimately be deemed to be contributing
factors by the City in its submission to HUD in 2019 after it further analyzes the items identified
in the preliminary presentation.
This Court does agree with Plaintiffs, however, that other portions of the AFFH
Presentations reflect nonprivileged factual material. For example, the City concedes that Table
3 on page 8, Table 12 on page 9, Table 6 on page 34, Table 7 on page 35, and pages 36 and 37
“are ‘pure’ facts, data or information provided from HUD[] that do not reflect the City’s
deliberations, and could be disclosed.” (Defendant’s Supplemental Memorandum of Law, dated
Oct. 6, 2017, p. 23.) Since pages 31-33 also appear to reflect HUD-provided data, these pages
can also be produced.
23
3. Application Of The Rodriguez Balancing Test
Having concluded that the AFFH Presentations are protected in part by the deliberative
process privilege does not end the inquiry, as this Court next must consider whether the
privilege should be upheld in light of the competing interests of the parties. See Rodriguez, 280
F. Supp. 2d at 99-101. As set forth above, relevant factors for the Court to consider include:
(i) the relevance of the evidence sought to be protected; (ii) the availability of
other evidence; (iii) the ‘seriousness’ of the litigation and the issues involved; (iv)
the role of the government in the litigation; and (v) the possibility of future timidity
by government employees who will be forced to recognize that their secrets are
violable.
Id. (quoting In re Franklin Nat’l Bank Secs. Litig., 478 F. Supp. 577, 583 (E.D.N.Y. 1979)). “If
consideration of the first four factors leads to the conclusion that they outweigh the risk
addressed by the fifth – possible future timidity – then the demanded document ought to be
disclosed,” despite the claim of privilege. Favors II, 2013 WL 11319831, at *11; see also
Rodriguez, 280 F. Supp. 2d at 101.
Relevance for purposes of invading a privilege is a narrower concept than relevance for
purposes of establishing the scope of discovery. Information that is presumptively privileged
will be deemed relevant only if it is central “to the proper resolution of the controversy.” See
Five Borough Bicycle Club, 2008 WL 4302696, at *1; cf. Torres v. City Univ. of New York, No. 90cv-2278 (LAP), 1994 WL 502621, at *4 (S.D.N.Y. Sept. 14, 1994) (holding that balancing test
weighed against disclosure of confidential information where such information was “not
necessary to [the plaintiff’s] case” and did not “have any significant probative value in proving
24
discriminatory intent”). The Court also notes that “[d]rafts, by their very nature, rarely satisfy
the test of relevance.” Grossman v. Schwarz, 125 F.R.D. 376, 385 (S.D.N.Y. 1989).
The AFFH Presentations amount to a preliminary overview of the City’s prospective AFH
submission – due in 2019 – pursuant to HUD’s new AFFH rule. In that regard, the presentations
have even less relevance than a draft of the City’s submission, which itself would be subject to
“repeated revisions, including changes in language and style, correction of typographical errors,
editing by superiors of subordinates' work, incorporation of new legal research or a more
detailed review of the facts, or simply a more focused view of the issues with each reading,”
diminishing any prior draft’s probative value. See id. Moreover, the AFHH Presentations were
created after this litigation was commenced and provide no insight into the City’s decisions to
implement, expand, or maintain the Community Preference Policy, which, significantly, are the
only City decisions at issue in this case.
Although Plaintiffs are correct that circumstantial evidence may be considered in an
intentional discrimination analysis, the scope of evidence relevant to that analysis has been
circumscribed by the courts. See Vill. of Arlington Heights, 429 U.S. at 267; United States v.
Yonkers, 837 F.2d 1181, 1221 (2d Cir. 1987). Factors to be considered in establishing
discriminatory intent include: whether the official action bears more heavily on one race than
another, the decision’s historical background, the specific sequence of events leading up to the
decision, departures from normal procedure, substantive departures, and contemporary
statements by members of the decisionmaking body). Id. Notably, the privileged information
contained in the AFFH Presentations does not assist Plaintiffs in establishing any of the
25
aforementioned Arlington Heights factors with respect to the policy at issue in this case. The
presentations are not tailored to New York City community districts and do not otherwise
reveal information central to the City’s decisions concerning the Community Preference Policy.
Certainly, the Arlington Heights factors are not exhaustive. However, Plaintiffs’
arguments as to the relevance of the document are unpersuasive. Nothing in the document
reflects any analysis of the racial impact of the Community Preference Policy on affordable
housing applicants, let alone the Policy’s impact on the demographics of community districts.
Nothing in the document bears on the reasons for the implementation, expansion, or
maintenance of the Community Preference Policy. Rather, the document reflects that HUD
listed a number of factors that can contribute to segregated housing and that the City identified
certain of these factors for further discussion in connection with planning how to comply with a
new federal rule. The document does not reflect a disregard of federal fair housing
requirements; rather, it reflects the opposite – that the City takes its obligations seriously and
created a preliminary presentation to fully analyze and discuss how to comply with the new
rule. Further, the City’s alleged knowledge that segregation exists – according to HUD’s data
and suggested initial methodology – does not indicate any acceptance of the data or
methodology or bear on knowledge about the impact, if any, of the Community Preference
Policy on the racial demographics of community districts. There is nothing in the presentations
that indicates the Community Preference Policy is designed to placate race-based community
opposition to affordable housing. In short, there are no admissions or analyses in the draft
presentations that are specific to the Community Preference Policy and, accordingly,
26
consideration of the “relevance” factor (pursuant to the narrower definition discussed above)
weighs against disclosure here.
The second Rodriguez factor – availability of other evidence – also weighs against
disclosure in this instance. Significantly, Plaintiffs have been provided data by the City that can
be analyzed by their own expert and, accordingly, have no need for the City’s preliminary
analyses of HUD-provided data. The HUD data itself, reflected in the AFFH Presentations’ tables
and maps, also will be produced to Plaintiffs pursuant to this Court’s order, as it is not subject
to the protections of the deliberative process privilege. Plaintiffs’ expert can analyze this data
as well. Any remaining privileged material in the AFFH Presentations that cannot be gathered
from the data is nonetheless, as discussed, not central to this litigation. On the whole, this
factor tips the balance against permitting an invasion of the City’s privilege.
The third factor – the seriousness of the case and issues involved – goes to the nature of
the claims themselves. Citizens Union of City of N.Y., 2017 WL 3836057, at *28. Because “every
federal case is serious,” the outcome of this factor “hinges on the interest of the public.” Id. In
other words, this Court must ask whether the public interest weighs in favor of disclosure or in
favor of protecting the ability of City officials to function properly in their roles without the
distraction of civil litigation. Id. It is indisputable that claims of racial discrimination raise serious
issue of public concern and that, in such cases, the public has a significant interest in a plaintiff’s
ability to obtain all the information needed to prosecute her claims. But, nothing in the
presentations provides information establishing the core issues in this case – whether the
Community Preference Policy was adopted or maintained for discriminatory motives and/or has
27
a racially disparate impact. Rather, the presentations concern the City’s preliminary assessment
of new HUD requirements pertaining to affordable housing. If all preliminary internal
assessments of federal requirements were subject to disclosure, internal communications on
these topics would be chilled. Accordingly, this factor too weighs against disclosure.
The fourth Rodriguez factor looks to the role of government in the litigation. Id. This
refers, specifically, to the government’s role in the allegedly unlawful conduct. See Favors II,
2013 WL 11319831, at *12. In this litigation, the City’s decisionmaking clearly is the central
issue challenged by Plaintiffs. Although the fourth factor favors disclosure here, the Court notes
that this factor will not always favor disclosure under the Rodriguez analysis – for example, in
instances where privileged government documents are sought pursuant to a third-party
subpoena and the government did not serve a central role in the allegedly unlawful conduct.
When these first four Rodriguez factors are balanced against the fifth factor – the
potential chilling effect that disclosure will have on government employees – this Court
concludes that disclosure of the AFFH Presentations, with the exception of the factual portions
mentioned above, is not warranted. A key rationale for the deliberative process privilege is the
need to ensure that government officials are able to engage in robust deliberations about, and
analysis of, proposed policies that are essential to the effective functioning of our government.
See Citizens Union of City of N.Y., 2017 WL 3836057, at *29. City officials cannot engage in
open, productive deliberations about how to best address the City’s fair and affordable housing
needs if all communications are subject to disclosure. It is in all parties’ interests – including the
interests of Plaintiffs and all other individuals who seek affordable housing in New York City – to
28
allow the City to engage in the candid exchange of ideas and opinions concerning the future of
its fair and affordable housing policies.
B.
The City’s Privilege Log
Out of the 80-document sample for which the City reassessed its privilege claims, the
City continues to assert that 27 documents are protected from disclosure by at least one
privilege. Having reviewed these 27 documents in camera, this Court will first address whether
each document is privileged and, if so, then will address whether the competing interests of the
parties weigh in favor of upholding, or circumventing, the deliberative process privilege.
1. Application Of The Asserted Privileges
•
NYCPRIV00017: This draft, internal memorandum is protected under the work
product and deliberative process privileges. It was prepared in anticipation of
this litigation and reflects potential alternatives to the Community Preference
Policy as part of the City’s formulation of its settlement position in this case.
With respect to the deliberative process privilege, the document is predecisional
because the City’s deliberations have not resulted in a final policy decision. It is
also deliberative, as it reflects non-final thoughts and assessments for the
purpose of reaching a final policy decision as to possible changes to the
Community Preference Policy. Given that disclosure of this document also would
reveal the City’s settlement strategies in connection with this litigation, this
Court finds that the privileges must be upheld.
29
•
NYC _0067301, NYCPRIV01218, and NYCPRIV01728: These email chains are not
protected under the legislative privilege. These documents primarily reflect
internal HPD conversations about what to say in response to Council Member
Rafael Espinal’s inquiries about various topics concerning East New York.
Because HPD is an executive agency, not part of the City’s legislative branch, its
internal communications do not constitute acts that are an “integral step[] in the
legislative process.” Bogan, 523 U.S. at 54-55. To the extent the City asserts that
the Council Member’s questions should be protected under the legislative
privilege, this argument also is unavailing. Although gathering information from
persons outside of the legislature in connection with potential legislative activity
may be privileged in some circumstances, see Almonte v. City of Long Beach, 478
F.3d 100, 107 (2d Cir. 2007), it is not clear here that the Council Member was
seeking information in aid of an activity that qualifies as “legislative in nature.”
See Ways & Means, 161 F. Supp. 3d at 237. Rather, many of the questions/topics
reflected in the emails seek updates on already-existing City policies and
programs, the administration of which falls outside of the legislative sphere of
responsibility. See id. at 246. Other topics appear to be more along the lines of
“cajoling” or attempting to influence the executive branch, rather than gathering
information in aid of legislating. See Gravel, 408 U.S. at 625 (observing that
legislators are “constantly in touch with the Executive Branch of the Government
and with administrative agencies—they may cajole, and exhort with respect to
30
the administration of a federal statute—but such conduct, though generally
done, is not protected legislative activity”). Moreover, no information is being
conveyed directly to the Council Member in these communications. Nor is it
clear from these emails what information was ever relayed to him. Thus, the City
must produce these documents.
•
NYCPRIV00090: This email chain is not protected under the deliberative process
privilege. Although the City attempts to characterize this minimally relevant
communication as pertaining to its deliberations regarding MIH and East New
York rezoning policies, nothing in this email chain reveals the City’s
decisionmaking process as it relates to those policies. Rather, the
communication simply reflects discussion about how to interpret data regarding
the effects of prior rezonings and what, if anything, should be communicated
about that data. Accordingly, the City must produce this document.
•
NYCPRIV00548: This spreadsheet is protected in part under the deliberative
process privilege. Column A, entitled “[p]roblem raised or inferred by
developers,” reflects purely factual information that falls outside of the scope of
the privilege and can be easily segregated from the privileged portions of the
documents. See Grand Cent. P’ship, Inc., 166 F.3d at 482; Local 3, Int’l Bhd. of
Elec. Workers v. Nat’l Labor Relations Bd., 845 F.2d 1177, 1180 (2d Cir. 1988)
(“Purely factual material not reflecting the agency’s deliberative process is not
protected.”). Information in Column F, labeled “[f]ix [a]lready [p]lanned for HC
31
2.0,” also is not privileged because the heading indicates that a final policy
decision had already been reached about how to correct an identified problem.
Thus, this information can be neither predecisional nor deliberative. However,
the information reflected in Columns B, C, and D does reflect preliminary ideas
and thoughts regarding how best to respond to the identified problems (i.e., the
issues raised by developers regarding Housing Connect and the marketing
process for affordable housing units) and would reveal the manner in which the
City reached a final policy decision. Thus, the information in these three columns
may be redacted on the basis of privilege.
•
NYCPRIV02127: The legislative privilege does not apply to this email chain
regarding questions from Council Member Margaret Chin about community
preference and affordable housing. As the document itself makes clear, a
member of the Council Member’s staff was seeking information for the purpose
of preparing for a public meeting with members of the community. It is well
established that the legislative privilege does not extend to preparing for
comments to be made outside of the legislative body. See Brewster, 408 U.S. at
512; Hutchinson, 443 U.S. at 130-33. Accordingly, the City must produce this
document.
•
NYCPRIV00242 and NYCPRIV00845: These documents are protected under the
work product privilege. Both of these documents were prepared in anticipation
of the HUD compliance review and a potential enforcement action from that
32
review. The law is clear that the work product doctrine protects documents
prepared in anticipation of adversarial proceedings, including governmental
investigations that could lead to litigation, to the same extent as materials
prepared for litigation. See, e.g., Alaska Elec. Pension Fund v. Bank of Am. Corp.,
No. 14-cv-7126 (JMF), 2016 WL 6779901, at *4 (S.D.N.Y. Nov. 16, 2016). The
closer question, however, is whether the City has waived its claim of privilege as
to these two documents because the documents were provided to HUD. In In re
Steinhardt Partners, L.P., 9 F.3d 230 (2d Cir. 1993), the Second Circuit held that a
party had waived its work product protection as to documents that were
voluntarily provided to a government adversary in a different proceeding. Id. at
235-36. However, the Court suggested, albeit in dicta, that the privilege might
not be waived in situations where the disclosing party entered into an
agreement with the government agency to maintain the confidentiality of the
disclosed documents. Id. at 236. Following Steinhardt, other courts in this Circuit
have upheld claims of work product privilege where the documents had
previously been produced to a government agency pursuant to a confidentiality
agreement. See, e.g., In re Symbol Techs., Inc. Secs. Litig., No. 05-cv-3923 (DRH)
(AKT), 2016 WL 8377036, at *14 (E.D.N.Y. Sept. 30, 2016) (holding that privileges
were not waived as a result of disclosures made to SEC where documents were
produced with understanding of confidentiality); Maruzen Co., Ltd. v. HSBC USA,
Inc., No. 00-cv-1079 (RO), 00-cv-1512 (RO), 2002 WL 1628782, at *1-2 (S.D.N.Y.
33
July 23, 2002) (finding no waiver of privilege where defendant entered into oral
confidentiality agreement with U.S. Attorney’s Office). Here, the City has
presented evidence that its submissions to HUD were made with the express
understanding that such documents would be kept confidential. For example,
Ms. Been testified that HUD personnel advised the City that communications and
documents related to the compliance review would be kept confidential and not
shared publicly. (Been Decl., dated Oct. 6, 2017, ¶ 14.) Ms. Sasanow similarly
avers that she understood HUD would treat all documents and communications
related to its review as confidential. (Sasanow Decl. ¶ 9.) This confidentiality
understanding was also explicitly stated in the City’s letter to HUD in the
document Bates-stamped NYCPRIV00242. In addition to the presence of a
confidentiality agreement, it is also relevant that Plaintiffs already possess, or
have access to, all of the data that underlies the City’s analysis in NYCPRIV00242,
as well as many of the documents referenced in NYCPRIV00845. See In re Natural
Gas Commodity Litig., 03-cv-6186 (VM) (AJP), 2005 WL 1457666, at *8-9
(S.D.N.Y. June 21, 2005) (holding that work product privilege was not waived
where there was a confidentiality agreement in place with the government and
where the factual documents underlying the privileged analysis had been
produced in the litigation); Alaska Elec. Pension Fund, 2016 WL 6779901, at *5
(following In re Natural Gas Commodity Litigation). Moreover, with respect to
NYCPRIV00242, this document also explicitly states that it was provided for
34
settlement purposes only and, accordingly, would not be admissible in this
litigation in any event. See Fed. R. Evid. 408. This document – NYCPRIV00242 –
additionally is protected under the deliberative process privilege because it
reflects the City’s non-final thoughts and assessments concerning potential
alternatives to the Community Preference Policy. The document is predecisional
because the City’s deliberations have not resulted in a final policy decision. For
all of the foregoing reasons, the Court finds that the City has not waived its claim
of work product privilege and that these documents may be withheld.
•
NYCPRIV00885 and NYCPRIV01023: The deliberative process privilege protects
these draft portions of the Inwood Action Plan and East New York Affordable
Housing Strategy from disclosure. It is clear from the face of these documents
that they are non-final and predecisional, as they reflect placeholder text, track
changes, and/or comment bubbles. Production of these draft documents also
would reveal the manner in which the City reached its final policy decisions
regarding housing issues in these two neighborhoods. In particular, this Court
notes that there are significant differences between the drafts and the final
published documents. 1 Given that the final versions of these documents are
available to Plaintiffs on the City’s website, the City will not be required to
1
While these drafts do reflect some factual material, the nature of the documents precludes the City from
segregating the factual portions from the otherwise privileged portions of the documents. Stinson v. City of New
York, 304 F.R.D. 432, 437 (S.D.N.Y. 2015) (recognizing that it may be impractical to sever the factual portions of a
document when “the context in which the facts were written and the fact that they were carefully chosen,
worded, and included discloses opinions and thought processes” about the policy decision).
35
produce its preliminary, non-final drafts of these plans. The Court accordingly
finds that the City is entitled to assert privilege claims over the entirety of these
drafts.
•
NYCPRIV00726: This email chain regarding the East New York Neighborhood
Plan is protected under the deliberative process privilege. This communication
occurred prior to the implementation of the Neighborhood Plan and, as such, is
predecisional. It is also deliberative, as it reflects debate and discussion over
policy issues.
•
NYCPRIV00731: This draft presentation is protected under the deliberative
process privilege. The City represents that the presentation was created to brief
the New York State Legislature on proposals that HPD wanted to implement
regarding tax and rent regulation issues, but that this particular document
reflects HPD’s non-final proposals on the topics. Disclosure of this preliminary
draft would reveal the process by which the City reached its final decision on
these policy issues. Although the City additionally asserts that this document is
protected under the legislative privilege, it has not made a showing sufficient to
support that assertion. The legislative privilege is “a personal one,” meaning that
it can only be asserted by each individual lawmaker. See Favors III, 2015 WL
7075960, at *8-9. The City has not demonstrated that this document was
prepared at the behest of a lawmaker, nor is the same apparent from the
document’s face. Nonetheless, because the deliberative process privilege applies
36
– as explained further in the balancing analysis below – this document is
protected against disclosure.
•
NYCPRIV00183: This draft memorandum regarding HPD’s homelessness unit
commitment is protected under the deliberative process privilege. This
document is still in draft form, as it reflects placeholder text, questions,
comment bubbles, and edits made using track changes. The tracked changes also
show how various underlying policy decisions were being substantively modified
as a result of the City’s deliberative process. It is true that the portion of the
document concerning the City’s announcement of the commitment does not
bear on policy-oriented deliberations. Nevertheless, this portion of the
document is not at all relevant to the claims or defenses in this case and,
accordingly, does not need to be produced.
•
NYCPRIV01556: This draft memorandum regarding the creation of a mandatory
inclusionary housing program is protected under the attorney-client and
deliberative process privileges. With respect to attorney-client privilege, the
document reflects questions directed to counsel in which the City sought legal
advice. It also recites the substance of legal advice rendered by counsel. The
deliberative process privilege also applies because the memorandum is a draft,
non-final policy proposal that was created for the purpose of assisting the
Mayor, and other City decisionmakers, in deciding whether to create a
mandatory inclusionary housing program. Although the City additionally claims
37
that this document is protected under the work product doctrine, it has failed to
demonstrate that the memorandum was prepared because of prospective
litigation. See Adlman, 134 F.3d at 1202. To the contrary, the City acknowledges
that this document was intended to communicate proposals to the Mayor
regarding a mandatory inclusionary housing program.
•
NYCPRIV00218 and NYCPRIV01648: These emails are protected under the work
product and deliberative process privileges. Both communications relate to the
statistical analyses the City conducted as part of its consideration of alternatives
to the Community Preference Policy. Ms. Been represents that the analyses
discussed in the emails were performed for the purpose of formulating potential
settlement proposals for the HUD compliance review. As such, they are
protected as work product. They are also protected under the deliberative
process privilege because they concern analysis that was done to help guide the
City’s decisionmaking process on potential Policy alternatives. Moreover, while
these documents do mention the Community Preference Policy in passing, they
are not particularly relevant to the issues in this litigation because they do not
contain any substantive discussion about the Policy or its rationales.
•
NYC_0056994: This email is protected in part by both the deliberative process
privilege and the work product privilege. Specifically, emails from Ms. Been and
Matthew Murphy dated September 26, 2016 at 5:23 a.m. and 7:04 a.m.,
respectively, are privileged. These portions of the document reflect preliminary
38
thoughts and deliberations about potential alternatives to the Community
Preference Policy. Additionally, to the extent Ms. Been and Mr. Murphy were
weighing and considering Community Preference Policy alternatives at the
direction of counsel in connection with this litigation or the HUD review—and
they would not have otherwise done so in carrying out general responsibilities
within HPD—their thoughts and mental impressions regarding the alternatives
they considered would be protected under the work product privilege,
particularly since Ms. Been has represented that she has engaged in significant
deliberations over Policy alternatives in connection with settlement efforts. With
respect to the rest of the email chain, however, the City has improperly redacted
content that does not reflect deliberations over policy or the exercise of policyoriented judgment and does not constitute work product prepared in
anticipation of litigation. At best, the communications concern issues that are
“merely peripheral to actual policy formation” and to which the deliberative
process privilege does not apply. Grand Cent. P’ship, Inc., 166 F.3d at 482. Thus,
the City will be permitted to redact the two emails from Ms. Been and Mr.
Murphy but must produce the remainder of the document in unredacted form.
•
NYCPRIV02154: This document, which reflects factual information that was
compiled in anticipation of this litigation, is protected under the work product
privilege. Although factual work product may be discoverable in some instances,
Plaintiffs here will not be able to establish a “substantial need” for this document
39
because the underlying facts all appear to have been gathered from publicly
available sources. See Obeid, 2016 WL 7176653, at *3. The City accordingly may
withhold this document as privileged.
•
NYCPRIV01387: The City has failed to meet its burden of establishing that this
document is protected under the work product privilege. Neither the document
itself, nor the City’s privilege log or other submissions present any basis for this
Court to conclude that the document was created in anticipation of litigation.
See Davis, 2012 WL 612794, at *5 (finding that “[a]s the parties asserting
privilege, defendants have the burden of establishing through its privilege log,
affidavits, or other evidentiary material that the elements of the privilege exist”
and ordering production where the revised privilege log was insufficient to
substantiate the claimed privileges). Therefore, the City must produce this
document.
•
NYCPRIV01399: This email is protected under the work product privilege
because it concerns how the City wanted to present its position as part of its
strategy in this litigation and was prepared in anticipation of litigation. The email
is not, as the City contends, protected under the deliberative process privilege
because the claimed “deliberations” contained therein (concerning the
Community Preference Policy) reflect only the City’s litigation strategy and not
any predecisional assessment of potential modifications to the Community
40
Preference Policy. Nonetheless, because the work product doctrine applies, this
document is protected against disclosure.
•
NYCPRIV00281 and NYCPRIV00393: These documents are protected under the
work product and deliberative process privileges. These documents reflect
analyses that were conducted as part of the City’s consideration of alternatives
to the Community Preference Policy. The City represents that they were
prepared in connection with either the HUD compliance review or this litigation.
Disclosure of these documents would reveal the City’s decisionmaking processes
concerning potential modifications to the Policy in connection with an
adversarial proceeding or in anticipation of litigation.
•
NYCPRIV01840: This document is a letter from HUD regarding the
commencement of its compliance review. While the City concedes that this
document is not protected as privileged, it contends that it is entitled to
withhold the document on confidentiality grounds. This Court is not persuaded
by this argument. Under Rule 26, Plaintiffs are entitled to discovery of all
nonprivileged and responsive documents, including documents that may be
subject to a third-party confidentiality agreement or understanding. See In Re
Subpoena Duces Tecum Served on Bell Commn’cns Res., Inc., No. MA-85, 1997
WL 10919, at *3 (S.D.N.Y. Jan. 13, 1997) (collecting cases that hold
confidentiality agreements cannot serve as protection from discovery requests
and observing that a contrary holding would “clearly impede ‘the truth-seeking
41
function of discovery in federal litigation,’ as all individuals and corporations
could use confidentiality agreements to avoid discovery.”) (citations omitted).
Notably, the question of whether a confidentiality agreement alone can prevent
disclosure is distinguishable from the question, addressed above, of whether a
confidentiality agreement may help to preserve a document’s privilege.
Moreover, the parties in this case have entered into a Protective Order that
restricts the use of material designated as confidential or for attorneys’ eyes
only. This Order is sufficient to protect the City’s interests in maintaining the
confidentiality of this document.
•
NYCPRIV00399: This memorandum is protected in part under the deliberative
process privilege. The memorandum itself reflects predecisional
recommendations and thoughts regarding how the City administration should
respond to issues related to the mandatory inclusionary housing program. Thus,
the City may withhold the memorandum (pages 1-6) as privileged. The
Appendices, however, reflect purely factual material that is not protected under
the deliberative process privilege. See Grand Cent. P’ship, Inc., 166 F.3d at 482.
Since the Appendices can be easily segregated from the underlying privileged
memorandum, the City must produce them.
•
NYC_0067432: This draft presentation is protected under the work product
privilege. The document, which was prepared in anticipation of litigation, reflects
42
the City’s litigation strategy, legal assessments, and potential alternatives for
settlement.
•
NYCPRIV02361: The City produced this email chain in redacted form and
redacted portions of the document on the basis of the deliberative process
privilege. This document is not privileged and should be produced in full without
redactions. Communications regarding how to “message” an already-made
policy decision to the public, like those reflected in this document, are not
protected by the deliberative process privilege. See Fox News II, 911 F. Supp. 2d
at 276 (“communications concerning how to present agency policies to the press
or public, although deliberative, typically do not qualify as substantive policy
decisions protected by the deliberative process privilege.”); Nat’l Day Laborer
Org. Network v. United States Immigration and Customs Enforcement Agency,
811 F. Supp. 2d 713, 741 (S.D.N.Y. 2011) (agency deliberations about the
“messaging” to be delivered to the public about an existing policy is not
protected under the privilege). Although the City contends that the details
surrounding the homeless referral policy had not yet been fully finalized at the
time of this communication, this document does not reflect or reveal the
substantive deliberations about any open policy issues.
43
2. Application Of The Rodriguez Balancing Test To Documents Protected By The
Deliberative Process Privilege
a. Relevance Of The Evidence
A majority of the documents listed on the City’s privilege log are drafts of various
documents, including drafts of Disclosure Provisions themselves, public statements, summaries,
and analyses, among other examples of preliminary work product. As discussed above,
“[d]rafts, by their very nature, rarely satisfy the test of relevance.” Grossman, 125 F.R.D. at 385.
As the court in Grossman explained, “administrative decisions . . . are often subjected to
repeated revisions, including changes in language and style, correction of typographical errors,
editing by superiors of subordinates’ work, incorporation of new legal research or a more
detailed review of the facts, or simply a more focused view of the issues with each reading.” Id.
It further stated that “[t]he relevance of such revisions to defendants’ state of mind is pure
speculation. Absent extrinsic evidence tending to show the relevance of a particular draft,
production of these documents is likely to lead only to wasteful fishing expeditions concerning
the identification and deciphering of handwriting and the reasons for immaterial revisions.” Id.
Additionally, as discussed above, “relevance” for purposes of invading a privilege is
defined narrowly and must be weighed against the potential chilling effect of disclosure on
government employees. Information that is presumptively privileged will be deemed relevant
only if it is central “to the proper resolution of the controversy.” See Five Borough Bicycle Club,
2008 WL 4302696, at *1; cf. Torres, 1994 WL 502621, at *4.
The City’s Excel spreadsheet Bates-stamped NYCPRIV00548, while related to the
Community Preference Policy, addresses the policy solely in the context of potential
44
modifications to the marketing process for affordable housing units. (Defendant’s Supplemental
Memorandum of Law, p. 9 n.4.) This document does not concern the City’s decisions to
implement, expand, or maintain the Community Preference Policy, which are the only City
decisions at issue in this case. The contents of the spreadsheet, therefore, are not central to the
resolution of this litigation, and application of the “relevance” factor weighs against disclosure
of the privileged portions of this document under Rodriguez.
The documents Bates-stamped NYCPRIV00885, NYCPRIV01023, and NYCPRIV00399
similarly fail to satisfy the heightened relevance standard under Rodriguez such that disclosure
should be favored. As the City previously indicated, these documents include only “limited
discussions of issues responsive to plaintiffs’ demands (typically anti-displacement strategies
and or [sic] community opposition).” (Defendant’s Supplemental Memorandum of Law, p. 9.)
The first two documents are draft portions of the Inwood NYC Action Plan and East New York
Affordable Housing Strategy, respectively. As such, their relevance would be diminished even if
they did contain information central to this litigation, which they do not. The third document is
a memorandum concerning the City administration’s potential response to issues related to the
mandatory inclusionary housing program. This document too, while not a draft, lacks
information central to the claims in this action and thus is not “relevant” so as to warrant an
invasion of the deliberative process privilege.
The document Bates-stamped NYCPRIV00731 is a draft of a presentation created to
brief the New York State Legislature on proposals that HPD wanted to implement regarding tax
and rent regulation issues. The document Bates-stamped NYCPRIV00183 is a draft
45
memorandum concerning HPD’s homelessness unit commitment. Neither document contains
information central to this litigation; thus, neither document is relevant for purposes of the
Rodriguez analysis.
The document Bates-stamped NYCPRIV00726 is an email chain concerning the East New
York Neighborhood Plan. Although portions of this document are not relevant, other portions
reference the Community Preference Policy and its underlying justifications, which are central
to this litigation. Accordingly, the Court finds that certain information contained in this
document meets the relevance threshold under Rodriguez.
b. Availability Of Other Evidence
With respect to the availability of other evidence, the Court notes that this factor carries
minimal, if any, weight when the evidence sought is not central to the litigation. If a privileged
document is not relevant under Rodriguez, it matters not whether the irrelevant information
contained therein is accessible to the requesting party by alternative means. Consideration of
this factor thus results in a neutral outcome with respect to the following documents, which do
not contain information central to the litigation: NYCPRIV00548, NYCPRIV00885,
NYCPRIV01023, NYCPRIV00399, NYCPRIV00731, and NYCPRIV00183. Notwithstanding that
these privileged documents fail to satisfy the heightened standard for relevance under the
balancing test, should Plaintiffs wish to review the contents of the Inwood NYC Action Plan
(NYCPRIV00885) or the East New York Affordable Housing Strategy (NYCPRIV01023), the final
versions of these documents are available on the City’s website.
46
Concerning the relevant information contained in NYCPRIV00726, such information
might be publicly available, as this email chain addresses revisions to documents that were
intended for eventual public release. Nevertheless, the email chain’s particular characterization
of the Community Preference Policy and its underlying justifications is unlikely to be found
elsewhere. Accordingly, this factor weighs in favor of disclosure of the relevant portion of
NYCPRIV00726.
c. Seriousness Of The Litigation
While “relevance” and “availability of other evidence” vary among documents, the third
Rodriguez factor – the seriousness of the case and issues involved – remains constant across
discovery categories. See Favors II, 2013 WL 11319831, at *11. As this Court previously found in
its analysis regarding the City’s clawback demand, the public has a significant interest in a
plaintiff’s ability to obtain all the information needed to prosecute her discrimination claims but
also has an overriding interest in fostering a productive government deliberation process –
particularly with respect to deliberations addressing the City’s fair housing needs. For all
documents at issue here, this factor thus weighs against disclosure of information protected by
the deliberative process privilege.
d. Government’s Role In The Litigation
As with the third Rodriguez factor, the fourth factor – the role of the government in the
litigation – remains constant across discovery categories. See id. In this litigation, the City’s
decisionmaking is the central issue challenged by Plaintiffs, and the government clearly plays a
47
direct role in the allegedly unlawful conduct. Accordingly, this factor weighs in favor of
disclosure for all documents at issue.
e. Potential Chilling Effect On Government Employees
When weighed against the potential chilling effect of court-ordered disclosure of
privileged information, the first four factors justify disclosure only of the relevant portion of
NYCPRIV00726. This Court reiterates that it is in all parties’ interests – including the interests of
Plaintiffs and all other individuals who seek affordable housing in New York City – to allow the
City to engage in robust deliberations and analysis concerning the future of its fair housing
policies. The City is ordered to produce NYCPRIV00726 in redacted form, disclosing the portion
that discusses the Community Preference Policy and its underlying justifications.
C.
The City’s Claims Of Privilege During Depositions
The parties have also marked 14 questions posed to Ms. Been during her deposition for
a ruling on the City’s invocation of privilege. Under the legal standards set forth above
governing the deliberative process, attorney-client, and work product privileges, the Court rules
as follows:
•
Been No. 1 (39:25 - 41:11): Plaintiffs asked Ms. Been whether it was her decision
to use certain language in a declaration. The City objected on the basis of work
product. The City’s privilege objection is sustained. Been’s declaration was
prepared with the assistance of counsel in the course of this litigation, and
strategic communications and decisions about what content to include in the
48
declaration are protected as work product. This question also does not seek
information that is relevant to the claims or defenses in this litigation.
•
Been No. 2 (69:12 - 70:12): Plaintiffs asked Ms. Been to describe a conversation
she had with Mayor DeBlasio in which they were discussing the City’s position on
pending rent regulation proposals. The City objected on the basis of deliberative
process privilege. The City’s objection is sustained. To respond to Plaintiffs’
question, Ms. Been would need to disclose the substance of deliberations she
had with Mayor DeBlasio regarding the City’s non-final positions on the
proposals. The communication Plaintiffs ask Ms. Been to describe is predecisional because it occurred before the City formulated its final position
regarding rent regulation modifications in 2015. It is also deliberative because, as
Ms. Been testified, its purpose was to consider and deliberate pending
regulatory proposals for the purpose of reaching a final decision. Because the
contents of Ms. Been’s conversation with Mayor DeBlasio are protected only by
the deliberative process privilege, the Court must next consider whether a
balancing under Rodriguez would nonetheless favor disclosure. With respect to
the first factor, the Court notes that the privileged information is, at least to
some degree, relevant to this litigation – particularly to the extent Plaintiffs wish
to show that increased rent regulation would serve the government’s interest in
preventing displacement effectively and with “less discriminatory effect” than
the Community Preference Policy. See Mhany Mgmt., Inc. v. County of Nassau,
49
819 F.3d 581, 617 (2d Cir. 2016). However, with respect to the second factor –
availability of other evidence – it is apparent that Plaintiffs could simply ask
HPD’s representatives about the effects of rent regulation on displacement
without requesting the specific contents of Ms. Been’s conversation with Mayor
DeBlasio. The third and fourth Rodriguez factors, as discussed previously, weigh
against and in favor of disclosure, respectively. Ultimately, the ease with which
Plaintiffs could access this information by alternative means, when considered in
light of the potential chilling effect of disclosure on government deliberations,
tips the balance against disclosure.
•
Been No. 3 (178:4 - 180:8): In response to a question inquiring whether HPD
compared the eligibility for affordable housing on both a city-wide and
community-district basis in its consideration of whether to retain the Community
Preference Policy, the City objected on the basis of deliberative process,
attorney-client, and work product privileges. The City’s objections are overruled.
The question posed requires a simple yes-or-no answer, and Ms. Been’s
response will not reveal any privileged communications, impressions, or
deliberations. Accordingly, Ms. Been is directed to respond to this question.
•
Been No. 4 and 5 (180:9 - 184:3 and 184:18 - 185:17): As a follow-up to the
question addressed in the prior bullet point, Plaintiffs asked Ms. Been to
describe what disparate impact analyses HPD conducted regarding the
Community Preference Policy. The City objected on the basis of deliberative
50
process, attorney-client, and work product privilege. The City’s objections are
sustained. The details of the City’s analyses are protected under attorney-client
privilege and the deliberative process privilege. The City sought the advice of
counsel regarding whether the Community Preference Policy is compliant with
federal and local laws, and part of that legal advice concerned how HPD should
conduct its disparate impact analysis, as Ms. Been testified. (See Tr. 181:2-5.)
Describing what specific statistical analyses were done would reveal privileged
communications, as well as the City’s preliminary deliberative process with
respect to whether to maintain or modify the Policy. Significantly, the City has
already identified and produced the data sets relevant to any disparate impact
analysis. In the course of expert discovery, both parties will have the opportunity
to present their statistical approaches and findings in formal expert reports, as
well as to cross-examine the opposing party’s statistical expert. Moreover, the
manner in which HPD conducted its preliminary data analyses during Ms. Been’s
tenure has no bearing on whether the Policy is intentionally discriminatory or
whether it, in fact, causes (or does not cause) a disparate impact. Thus, the
details of HPD’s preliminary statistical approaches are not relevant to the claims
and defenses in this action. Rather, what is relevant is whether the City
conducted an analysis, what data set was used for the analysis, and whether the
City concluded that the Policy had a disparate impact on the basis of race.
51
Plaintiffs may ask these questions but cannot probe further into the specifics of
HPD’s early data analyses.
•
Been Nos. 6 and 7 (223:18 - 224:17 and 224:18 - 225:6): Plaintiffs asked whether
Ms. Been ever expressed concerns about the legality of the Community
Preference Policy. The City objected on the basis of attorney-client and work
product privilege. The City’s privilege objections are sustained in part. If Ms.
Been’s response would require her to reveal statements made during
conversations soliciting or receiving legal advice from counsel, then the attorneyclient privilege protects such conversations. Similarly, any communications in
which Ms. Been discussed the legality of the Community Preference Policy in the
context of the HUD compliance review or this litigation at the direction of
counsel are protected under the work product privilege. However, if Ms. Been
ever expressed concerns about the Policy’s legality outside of a discussion with
counsel and not in anticipation of litigation or the HUD review, then the
privileges would not apply and such communications would be discoverable.
•
Been No. 8 (227:23 - 228:11): Plaintiffs asked Ms. Been whether she ever
thought that it was a good idea to eliminate community preference in any lowpoverty area during her tenure at HPD. The City objected on the basis of
attorney-client privilege. The City’s objection is overruled. Ms. Been’s response
to this question would require her to disclose only her own thoughts, not the
substance of any privileged communications with counsel that may have
52
occurred on this topic. Accordingly, Ms. Been shall respond to this question.
However, to the extent that Plaintiffs ask follow-up questions that would require
Ms. Been to divulge the substance of her conversations with counsel, the City
may invoke attorney-client privilege as applicable.
•
Been No. 9 (228:19 - 229:20): Plaintiffs asked Ms. Been to explain what
considerations weighed in favor of eliminating the Community Preference Policy
in certain low-poverty areas. The City objected on the basis of deliberative
process and work product privilege. The City’s objections are sustained. To the
extent that Ms. Been was weighing and considering Community Preference
Policy alternatives at the direction of counsel in connection with this litigation or
the HUD review—and she would not have otherwise done so in carrying out
general responsibilities within HPD—her thoughts and mental impressions
regarding the alternatives she considered would be protected under the work
product privilege, particularly since Ms. Been has represented that she has
engaged in significant deliberations over Policy alternatives in connection with
settlement efforts. The deliberative process privilege also applies because
Plaintiffs are seeking testimony about how the City reached a final policy
determination—that is, its decision not to modify the Policy to eliminate the
community preference in certain low poverty areas. However, to the extent the
City’s decisionmaking process regarding potential modifications to the
Community Preference Policy outside the context of settlement-related
53
discussions considered race, or otherwise implicated race-based concerns, the
City will not be permitted to assert the deliberative process privilege to preclude
discovery into whether, and how, race was considered. Moreover, the City also
must be prepared to articulate its final reasons for why it maintained the Policy
in its current form, as the deliberative process privilege does not protect the
justifications underlying a final policy determination.
•
Been No. 10 (236:12 - 237:23): After Ms. Been testified that she requested racial
diversity index data during her tenure at HPD for the purpose of exploring
different approaches to community preference in the context of the HUD
compliance review, Plaintiffs asked her to describe the different approaches she
explored. The City objected on the basis of deliberative process, attorney-client,
and work product privilege. The City’s objections are sustained in part. Ms.
Been’s testimony makes it clear that she was using the data indexes and
considering different approaches to community preference because of the HUD
compliance review. Thus, under the work product doctrine, she will not be
required to describe the specifics of her analyses to the extent they were
conducted at the direction of counsel, as she represents they were. The
attorney-client privilege would also apply insofar as Ms. Been’s response would
disclose communications with counsel regarding legal advice, such as
conversations between Ms. Been and her attorneys concerning the legal merits
or risks of different alternatives to the Policy. Moreover, testimony regarding
54
what alternatives Ms. Been considered, but did not ultimately adopt, also would
be protected under the deliberative process privilege because her analysis was
predecisional and would reflect her decisionmaking process.
•
Been No. 11 (262:9 - 265:17): Plaintiffs asked Ms. Been to explain a statement
she made in an email about the potential for litigation against the City. The City
objected on the basis of attorney-client privilege. The City’s objection is
sustained. As Ms. Been stated during her deposition, her response to Plaintiffs’
question would require her to divulge the content of discussions she had with
HPD’s General Counsel about the potential legal consequences of adopting
certain policy positions.
•
Been No. 12 (275:10 - 280:16): In response to Plaintiffs’ questions about
whether Ms. Been considered a particular document in connection with possible
changes to the Community Preference Policy, the City objected on the basis of
work product. The City’s objection is overruled. Responding to this yes-or-no
question will not require Ms. Been to disclose legal strategy or the substance of
any privileged work product. Moreover, discovery regarding the City’s
consideration of alternatives to the Community Preference Policy is relevant
given the nature of Plaintiffs’ claims in this case. Ms. Been is not required to
disclose the substance of any discussions she had about this document in
connection with this litigation or settlement. At the same time, to the extent
HPD has already rejected any of the community preference strategies reflected
55
in the document at issue, Plaintiffs are entitled to learn why such strategies were
deemed insufficient to serve the City’s “substantial, legitimate,
nondiscriminatory interests” with “a less discriminatory effect” than the
Community Preference Policy. See Mhany Mgmt., Inc., 819 F.3d at 617.
Questioning must be carefully tailored to the above-described findings.
•
Been No. 13 (280:20 - 282:15): Plaintiffs asked Ms. Been about whether the
community preference percentage amount was “frozen” once this litigation
began. The City objected on the basis of attorney-client and work product
privilege. The City’s objections are sustained. As Ms. Been testified and as the
City represents in its privilege log, decisions regarding whether to modify the
50% preference for community district residents were discussed in the context
of this litigation with counsel. Testimony regarding these communications and
the related decisionmaking process would reveal legal strategy and advice
rendered in connection with this litigation.
•
Been No. 14 (282:16 - 283:23): Plaintiffs asked Ms. Been to explain a statement
she made about not changing the Community Preference Policy during the
pendency of this litigation. The City objected on the basis of attorney-client
privilege. The City’s objection is sustained. In order to respond to Plaintiffs’
question, Ms. Been has stated that she would need to disclose communications
with counsel concerning whether or not to modify the Community Preference
Policy during the pendency of the litigation. Such discussions regarding legal
56
strategy in the context of an ongoing litigation are protected by the attorneyclient privilege.
CONCLUSION
For the foregoing reasons, Plaintiffs’ objections to the City’s clawback demand are
DENIED; Plaintiffs’ objections to the City’s privilege log are GRANTED in part and DENIED in part;
and the City’s assertions of privilege during depositions are SUSTAINED in part and OVERRULED
in part. The City is directed to produce the documents Bates-stamped NYC _0067301,
NYCPRIV01218, NYCPRIV01728, NYCPRIV00090, NYCPRIV02127, NYCPRIV01387,
NYCPRIV01840, and NYCPRIV02361, as well as redacted copies of the documents Batesstamped NYCPRIV00548, NYC_0056994, NYCPRIV00399, and NYCPRIV00726 in accordance with
this opinion.
SO ORDERED.
Dated: February 1, 2018
New York, New York
______________________________
KATHARINE H. PARKER
United States Magistrate Judge
57
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