Winfield et al v. City Of New York
Filing
547
OPINION AND ORDER re: 454 LETTER MOTION for Discovery (clawed-back OMB briefing document) addressed to Magistrate Judge Katharine H. Parker from Craig Gurian dated June 15, 2018. LETTER MOTION to Seal Document (exhibit 1 and le tter-motion redactions) addressed to Magistrate Judge Katharine H. Parker from Craig Gurian dated June 15, 2018. filed by Emmanuella Senat, Shauna Noel. Plaintiffs' Motion to Compel Disclosure of the October PPT is DENIED. The parties a re further directed to submit a joint letter to the Court three days in advance of the next Case Management Conference setting forth a proposed agenda and summarizing open discovery issues for discussion. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 9/13/18) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------X
JANELL WINFIELD, SHAUNA NOEL,
and EMMANUELLA SENAT,
Plaintiffs,
09/13/2018
OPINION AND ORDER
15-CV-05236 (LTS) (KHP)
-againstCITY OF NEW YORK,
Defendant.
-----------------------------------------------------------------X
KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
On February 1, 2018, this Court issued an Opinion and Order (Doc. No. 259) denying
Plaintiffs’ objections to the City’s demand to claw back two PowerPoint presentations that the
City claimed were subject to the deliberative process privilege but were inadvertently
produced. The presentations were prepared to aid City decisionmakers in early policy
decisionmaking that will eventually be reflected in a submission to the U.S. Department of
Housing and Urban Development (“HUD”) pursuant to HUD’s new Affirmatively Furthering Fair
Housing (“AFFH”) rule. The submission is due in 2019. The Court assumes the parties’
familiarity with those PowerPoint presentations and does not re-describe them further here.
Based on the Court’s February 1, 2018 ruling, the parties agreed that a similar PowerPoint
document commencing with Bates number 53095 and bearing the file name “AFH Deck for
OMB 2016-10-21.pptx” (the “October PPT”) would be treated as subject to the deliberative
process privilege. The October PPT is dated about a month after the two PowerPoint
presentations that the Court considered in its February 1, 2018 Order. It was shared with the
City’s Office of Management and Budget (“OMB”).
1
On June 15, 2018, Plaintiffs moved to deem the October PPT not privileged and compel
production of the October PPT based on recent deposition testimony from Matthew Murphy,
Deputy Commissioner for Policy and Strategy at the City’s Department of Housing Preservation
and Development (“HPD”). (Doc. No. 454.) According to Plaintiffs, Mr. Murphy’s testimony
made clear that the October PPT was not created to assist in the conduct of policy deliberation,
but rather to brief certain City agencies factually. The City opposes Plaintiffs’ motion and states
that the October PPT is privileged for the same reasons articulated in the Court’s February 1,
2018 Order. This Court agrees.
Having reviewed portions of Mr. Murphy’s deposition provided by the parties, the
original declaration of David Quart, HPD’s Deputy Commissioner for Strategy, Research and
Communications, concerning the purpose of the PowerPoint presentations (as described more
fully in the Court’s February 1, 2018 Order), and the October PPT itself, it is clear that the
October PPT contains some of the same preliminary analysis of the new HUD rule as in the
earlier-dated PowerPoint presentations that this Court held were protected by the deliberative
process privilege. Seventeen of the twenty-five pages in the October PPT are nearly identical to
those in the earlier-dated presentations. The October PPT was prepared by HPD Strategic
Planning, which was leading the effort to determine how to conduct the analyses required by
the new HUD rule and identify the policies that would be studied and highlighted in the
ultimate submission to HUD. Mr. Murphy testified that the deliberations regarding the HUD
submission involved multiple agencies and required collaboration among agencies. (See Doc.
No. 470-4, Excerpts from Deposition Transcript of Matthew Murphy (“Tr.”) at 101:7-21, 102:18103:3.) Indeed, the October PPT itself specifically mentions that additional inter-agency
2
coordination was part of HPD’s “next steps.” Part of the preliminary deliberations regarding
the new HUD rule necessarily involved OMB, as financial constraints could bear on analyses
that HPD elected to undertake or impact the timing of certain analyses needed for the ultimate
submission to HUD.
Plaintiffs do not argue (nor could they) that the deliberative process privilege was
waived by virtue of HPD’s sharing the October PPT with OMB. 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))
(deliberative process privilege applies to both inter- and intra-agency deliberative
communications.) Rather, Plaintiffs argue that the October PPT “is not a deliberative
document.” (Doc. No. 472, at 1.) However, for the reasons set forth above, this Court finds
that the October PPT, like the earlier-dated presentations, is both deliberative and
predecisional and, thus, protected by the deliberative process privilege. See Marisol A. v.
Giuliani, No. 95-cv-10533 (RJW), 1998 WL 132810, at *6 (S.D.N.Y. Mar. 23, 1998). It is not
surprising that the department in charge of the City’s purse strings would need a full
understanding of the new HUD rule, as well as HPD’s preliminary thoughts about the scope of
activities needed to prepare the submission and next steps, in order to approve budget
increases. HPD’s briefings to OMB to ensure adequate financial support for its deliberative
process is integral to that process. Sharing preliminary deliberations and thoughts to OMB
about the deliberative process is not a waiver of privilege and does not render those
deliberations and thoughts “factual.”
Thus, for the same reasons the Court denied Plaintiffs’ objections to the City’s clawback
demand in its February 1, 2018 Order, the Court denies Plaintiffs’ motion to deem the October
3
PPT not privileged and compel disclosure of the October PPT; provided, however, the City shall
produce the factual information contained in certain appendices to the PPT to the extent it has
not done so already. The Court likewise declines to expand its review of privileged documents
beyond those already submitted in camera. Finally, to the extent Plaintiffs have requested that
the Court compel “all briefing documents adverted to in the Murphy deposition that are
responsive to plaintiffs’ document requests,” their request is denied.
CONCLUSION
For all of the foregoing reasons, Plaintiffs’ Motion to Compel Disclosure of the October
PPT is DENIED.
The parties are further directed to submit a joint letter to the Court three days in
advance of the next Case Management Conference setting forth a proposed agenda and
summarizing open discovery issues for discussion.
SO ORDERED.
Dated: September 13, 2018
New York, New York
______________________________
KATHARINE H. PARKER
United States Magistrate Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?