Price v. Simmons et al

Filing 196

ORDER: Accordingly, the Court orders the DANY Defendants to take the following actions on or before January 10, 2022. First, the DANY Defendants shall perform a keyword search of former-Assistant District Attorney Kenya Wells's emails for messa ges related to Plaintiff's cellphones. The search shall be limited to emails that Mr. Wells sent or received between May and July 2011, and shall use at least the following keywords: (i) the case number associated with Plaintiff's 2011 prof fer; (ii) Kelly Price; and (iii) Raheem Powell. The DANY Defendants shall submit a letter summarizing the findings of the keyword search and provide copies of any responsive emails. Second, the DANY Defendants shall address in the letter described ab ove the significance of the forensic analyses of Plaintiff's phones and state whether the DANY Defendants agree or disagree with Plaintiff's characterization of the analyses. Third, the DANY Defendants shall provide a copy of the applicatio n that Mr. Wells drafted, but did not submit, for a warrant authorizing the search of Plaintiff's phones. The DANY Defendants shall endeavor to file the materials described above on the public docket. To the extent that certain materials, such a s Mr. Wells's emails or the draft search warrant application, implicate the attorney-client privilege or contain other sensitive information, the DANY Defendants may email such materials in camera to the Court's chambers email address, F [e-mail], and may redact quotations or specific references to the materials from their publicly-filed submissions. Defendant New York City shall transmit a copy of this Order to counsel for the DANY Defendants. The Court will provide a copy of this Order via email to Plaintiff. SO ORDERED. (Signed by Judge Katherine Polk Failla on 11/3/2021) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KELLY PRICE,
Plaintiff,
-v.THE CITY OF NEW YORK, et al.,

15 Civ. 5871 (KPF)
ORDER

Defendants.
KATHERINE POLK FAILLA, District Judge:
On September 17, 2021, the Court held a conference addressing Plaintiff
Kelly Price’s claim that members of the District Attorney of New York’s Office
(the “DANY Defendants”) had deleted files from two cell phones that she turned
over to them during a proffer in 2011. (See Minute Entry for September 17,
2021). During the conference, the DANY Defendants stated that there was no
evidence that they had accessed or altered the contents of Plaintiff’s phones.
The DANY Defendants further stated that they could not comment on Plaintiff’s
claim that forensic analyses of her phones demonstrated that the DANY
Defendants had in fact accessed the phones until they were provided copies of
the full analyses. At the conclusion of the conference, the Court directed
Plaintiff to provide to the Court and the DANY Defendants: (i) copies of the
forensic analyses and (ii) contact information for someone at the organization
that performed the analyses. Plaintiff has since provided both the analyses
and contact information via email to the Court and the DANY Defendants.
Based on its review of the materials provided by Plaintiff and the
representations made by the DANY Defendants at the September 17, 2021

conference, the Court continues to be concerned that the DANY Defendants
have not adequately addressed Plaintiff’s allegations. The DANY Defendants
have neither explained how they came to possess a screenshot of Plaintiff’s text
messages with her then-partner Raheem Powell nor spoken to the significance
of Plaintiff’s forensic analyses (see Dkt. #183, Ex. E). The Court finds that it is
necessary to hear from the DANY Defendants on these two unaddressed issues
before it determines the appropriate next steps in this case.
Accordingly, the Court orders the DANY Defendants to take the following
actions on or before January 10, 2022. First, the DANY Defendants shall
perform a keyword search of former-Assistant District Attorney Kenya Wells’s
emails for messages related to Plaintiff’s cellphones. The search shall be
limited to emails that Mr. Wells sent or received between May and July 2011,
and shall use at least the following keywords: (i) the case number associated
with Plaintiff’s 2011 proffer; (ii) Kelly Price; and (iii) Raheem Powell. The DANY
Defendants shall submit a letter summarizing the findings of the keyword
search and provide copies of any responsive emails. Second, the DANY
Defendants shall address in the letter described above the significance of the
forensic analyses of Plaintiff’s phones and state whether the DANY Defendants
agree or disagree with Plaintiff’s characterization of the analyses. Third, the
DANY Defendants shall provide a copy of the application that Mr. Wells drafted,
but did not submit, for a warrant authorizing the search of Plaintiff’s phones.
The DANY Defendants shall endeavor to file the materials described
above on the public docket. To the extent that certain materials, such as Mr.
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Wells’s emails or the draft search warrant application, implicate the attorneyclient privilege or contain other sensitive information, the DANY Defendants
may email such materials in camera to the Court’s chambers email address,
[e-mail], and may redact quotations or
specific references to the materials from their publicly-filed submissions.
Defendant New York City shall transmit a copy of this Order to counsel
for the DANY Defendants. The Court will provide a copy of this Order via email
to Plaintiff.
SO ORDERED.
Dated: November 3, 2021
New York, New York
KATHERINE POLK FAILLA
United States District Judge

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