W et al v. The City Of New York , et al

Filing 428

OPINION AND ORDER: Accordingly, for all the foregoing reasons, plaintiffs' application to compel the production of drafts of certain of defendants' policies is denied. (Signed by Magistrate Judge Henry B. Pitman on 12/20/2018) Copies Transmitted By Chambers. (ne)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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ELISA W., by her next friend
Elizabeth Barricelli, et al.,
Plaintiffs,
OPINION
AND ORDER

-againstTHE CITY OF NEW YORK, et al.,
Defendants.

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PITMAN, United States Magistrate Judge:
I write to resolve a dispute between the parties
concerning plaintiffs' application to compel the production of
drafts of certain policies and procedures of the defendant City
of New York ("the City") .
The facts of this case are set forth in the Opinion and
Order of the Honorable Laura Taylor Swain, dated September 12,
2016, Elisa W. v. City of New York, 15 Civ. 5273

(LTS) (HBP), 2016

WL 4750178 (S.D.N.Y. Sept. 12, 2016) and my Report and Recommendation, dated February 28, 2018, Elisa W. v. City of New York, 15
Civ. 5273

(LTS) (HBP), 2018 WL 1413254 (S.D.N.Y. Feb. 28, 2018),

adopted at 2018 WL 1406618 (S.D.N.Y. Mar. 20, 2018).

Familiarity

with these decisions is assumed.
The present dispute arises out of plaintiffs' request
for drafts of the City's policies.

The City claims that the

drafts are not responsive to plaintiffs' requests, irrelevant and

that their production would be disproportionate to the needs of
the case.

The City also claims that the documents are subject to

the deliberative process privilege, although that issue is not
currently before me.
Given that the City has listed the documents on its
schedules of documents withheld on the ground of privilege, I
conclude that the City has waived any claim of non-responsiveness.

Relevance, however, is a closer case.
The parties appear to agree in substantial part that

the standard for liability is deliberate indifference.

In its

most-recent published decision addressing deliberate indifference, albeit in a different context, the Court of Appeals described the claim as having two elements:
A pretrial detainee may establish a§ 1983 claim
for allegedly unconstitutional conditions of confinement by showing that the officers acted with deliberate
indifference to the challenged conditions.
See
Benjamin, 343 F.3d at 50. This means that a pretrial
detainee must satisfy two prongs to prove a claim, an
"objective prong" showing that the challenged conditions were sufficiently serious to constitute objective
deprivations of the right to due process, and a "subjective prong" -- perhaps better classified as a "mens
rea prong" or "mental element prong" -- showing that
the officer acted with at least deliberate indifference
to the challenged conditions.
The reason that the term
"subjective prong" might be a misleading description is
that, as discussed below, the Supreme Court has instructed that "deliberate indifference" roughly means
"recklessness," but "recklessness" can be defined
subjectively (what a person actually knew, and disregarded), or objectively (what a reasonable person knew,

or should have known).
See Farmer v. Brennan, 511 U.S.
825, 836-37, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

2

Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017); accord Roland
v. Ponte, 17 Civ. 2758 (LGS), 2018 WL 4609109 at *4 (S.D.N.Y.
Sept. 25, 2018)

(Schofield, D.J.).

Plaintiffs claim that drafts

of the City's policies will be relevant to show risks actually
known to, but disregarded by, defendants.
Although plaintiffs' argument is cogent, I conclude
that other factors weigh in favor of denying plaintiffs' application for production.

The risk involved in this case is the risk

that a foster parent will abuse or neglect a foster child.

It is

close to a certainty that the City will not be able to seriously
claim that it was unaware of this risk.

Hardly a month goes by

without a news story about a truly tragic story of child abuse or
neglect perpetrated by either a birth or foster parent.

The

City's Administration for Children's Services ("ACS") web site
has multiple references to child abuse and neglect, how to
identify it and how to report it.

Sadly, abuse and neglect of

foster children is not a recent phenomenon.

See People v.

Steinberg, 79 N.Y.2d 673, 595 N.E.2d 845, 584 N.Y.S.2d 770 (1992)
(affirming the manslaughter conviction of a notorious "adoptive"
parent for failing to provide medical care for a six-year-old
child).

The City's employees will, I believe, have a difficult

time credibly claiming that they were unaware of the risk of
abuse and neglect by foster parents, especially given the nature
of ACS's mission.

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The second factor that bears on plaintiffs' application
is the nature of the request -- all drafts of certain policies.
It is highly probable that the vast majority of the drafts differ
from the final versions in immaterial respects, such as diction,
punctuation, spelling, sentence order, etc.
Since December 2015, the concept of proportionality has
taken on heightened significance in discovery.

Vaigasi v. Solow

Mgm't Corp., 11 Civ. 5088 (RMB) (HBP), 2016 WL 616386 at *13-*14
(S.D.N.Y. Feb. 16, 2016).

Proportionality focuses on the mar-

ginal utility of the discovery sought.

Zubulake v. UBS Warburg,

LLC, 217 F.R.D. 309, 322-23 (S.D.N.Y. 2003)
Jill C. Rice

&

(Scheindlin, D.J.);

Steven M. Puiszis, Returning to Proportionality,

58 No. 1 DRI for Def. 14 (Jan. 2016); see also Hagemeyer N. Am.,
Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594, 602
2004).

(E.D. Wis.

The fact that particular information is relevant does not

mean that its production will always be proportional to the needs
of the case.

If relevance alone always rendered information

discoverable, the proportionality limitation would be meaningless.
Although at least some of the drafts plaintiffs seek
may be relevant, I conclude that requiring their production would
not be proportional to the needs of the case.

To the extent

drafts contain only grammatical and similar edits, they will add
nothing.

To the extent they bear on the defendants' knowledge of

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the risks of abuse and neglect, they bear on an issue that
defendants would be foolish to deny.

Thus, although potentially

relevant, I believe the drafts have little incremental probative
value.
Accordingly, for all the foregoing reasons, plaintiffs'
application to compel the production of drafts of certain of
defendants' policies is denied.
Dated:

New York, New York
December 20, 2018
SO ORDERED

HENRY PITMAN
United States Magistrate Judge
Copies transmitted to:
All Counsel

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