Breton v. City of New York et al.
Filing
63
OPINION & ORDER re: 55 FIRST LETTER MOTION for Conference addressed to Judge John G. Koeltl from Andrew M. Stengel dated 10/11/2019. filed by Frankie Breton. Accordingly, for the reasons set forth above, Plaintiff's Letter-Motion for a Conference is denied. The Clerk of Court is respectfully directed to close ECF No. 55. SO ORDERED. (Signed by US Magistrate Judge Sarah L Cave on 11/1/2019) (ks)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
FRANKIE BRETON,
Plaintiff,
against
CIVIL ACTION NO.: 17 Civ. 9247 (JGK) (SLC)
CITY OF NEW YORK, et al.,
OPINION & ORDER
Defendant.
SARAH L. CAVE, United States Magistrate Judge:
Plaintiff moved for a Local Civil Rule 37.2 Conference to resolve a non-party discovery
dispute. (ECF No. 55 at 1). Plaintiff seeks to compel Non-party New York County District
Attorney’s ("NYCDA") production of (1) a two-page email from the assigned prosecutor to her
supervisor in the underlying criminal prosecution relating to this civil action, summarizing the
investigation and evaluating the case; and (2) two Calendar Notes from the prosecutor to two
other prosecutors handling two court appearances in the criminal case on her behalf, including
handwritten notes taken during calendar call. (ECF No. 55 at 2; ECF No. 59 at 1). For the
reasons set forth below, the motion is denied.
The work product privilege protects “materials prepared by or at the behest of counsel
in anticipation of litigation or for trial.” Vazquez v. City of New York, 2014 U.S. Dist. LEXIS
160270, at *2 (S.D.N.Y. Nov. 14, 2014) (internal citations omitted). Work product includes “the
mental impressions of an attorney” reflected in many “tangible and intangible ways,” including
statements, memoranda, and correspondence. Hickman v. Taylor, 329 U.S. 495, 510–11 (1947).
Work product is either factual or “core.” Abdell v. City of New York, No. 05 Civ. 8453
(KMK)(JCF), 2006 WL 2664313, at *6 (S.D.N.Y. Sept. 14, 2006). Core work product includes the
“mental impressions, conclusions, opinions or legal theories of an attorney.” Id. (quoting Fed.
R. Civ. P. 26(b)(3)(B)); see United States v. Jacques Dessange, Inc., 2000 U.S. Dist. LEXIS 3734, at
*11 (S.D.N.Y. 2000) (identifying a memo summarizing witness statements and recommending
trial strategy as “opinion work product that deserve protection beyond that accorded to factual
material”).
The work product doctrine applies to a non-party who “has a continuing interest in the
matters in dispute here that provides a sufficient basis for protecting their work product.” Jean
v. City of New York, 2010 U.S. Dist. LEXIS 2282, at *6–7 (E.D.N.Y. Jan. 12, 2010); see Bellamy v.
City of New York, 2015 U.S. Dist. LEXIS 67366, at *2 (E.D.N.Y. May 22, 2015) (finding that “the
conduct of the Queens District Attorney form[ed] the basis of some of the claims for which the
plaintiff [sought] to hold the City of New York liable, and in that sense that office ha[d] the
same interest as if they were a party in [the civil] case”). The doctrine’s rationale exists even if
a “further prosecution of the plaintiff cannot be maintained.” Bellamy, 2015 U.S. Dist. LEXIS
67366, at *2–3.
To obtain production of material classified as work product, the movant must show that
he has a "substantial need for the materials to prepare [his] case and cannot, without undue
hardship obtain their substantial equivalent by other means." Fed. R. Civ. P. 26(b)(3)(A)(ii).
Once a showing of substantial need is made, factual work product is subject to disclosure, but
in the Second Circuit, core work product is entitled to what some courts describe as absolute
protection, unless a “highly persuasive showing [of need] is made.” Jean, 2010 U.S. Dist. LEXIS
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2282, at *5–6 (quoting In re Grand Jury Proceedings, 219 F.3d 175, 190–91 (2000)); see Upjohn
Co. v. United States, 449 U.S. 383, 401–02 (1981) (holding that opinion work product is
generally not discoverable).
The email and calendar notes constitute attorney work product. The email was
prepared by the prosecuting attorney to analyze the criminal case and decide whether to
proceed. (ECF No. 59 at 1). The calendar notes consist of instructions from one attorney to
others regarding how to proceed at appearances in the criminal case. (ECF No. 59 at 3). Both
document categories include the attorney’s mental impressions of the case, making them
“core” work product. Abdell, 2006 WL 2664313, at *6. The work product doctrine extends to
NYCDA because that office has a continuing interest in this matter, in which the same conduct
in the underlying criminal case prosecuted by NYCDA “forms the basis of [] the claims for which
the plaintiff seeks to hold the City of New York liable.” Bellamy, 2015 U.S. Dist. LEXIS 67366, at
*2.
Plaintiff argues that he “has sufficient need and there is no other way to obtain the
material.” (ECF No. 62 at 1). He also cites Vazquez’s holding that “in cases of alleged
misconduct, plaintiffs have a substantial need to discover statements that officers made to
prosecutors” and “courts have ordered disclosure even where . . . the relevant materials were
not created in connection with the initial investigation or prosecution, but in later
reinvestigation.” Vazquez, 2014 U.S. Dist. LEXIS 160270, at *5. He does not elaborate on why
he needs the documents, nor does Vazquez support his position because there is no suggestion
that the email or the calendar notes contain any statements from officers to prosecutors.
Therefore, Plaintiff has not shown that he has a substantial need for the documents.
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Plaintiff also argues that the calendar notes were “read aloud in open court.” (ECF No.
62 at 1). NYCDA counters that the notes were not read aloud, but even if they were, Plaintiff
can order the transcripts and access the information that way. (ECF No. 59 at 3). Plaintiff has
not ordered the transcripts or explained why he cannot do so. (Id.) Based on his own
contention that the calendar notes were read aloud in open court, Plaintiff can “without undue
hardship, obtain their equivalent by other means,” that is, by ordering the transcripts. Fed. R.
Civ. P. 26(b)(3)(A)(ii).
Accordingly, for the reasons set forth above, Plaintiff’s Letter-Motion for a Conference is
denied. The Clerk of Court is respectfully directed to close ECF No. 55.
Dated:
New York, New York
November 1, 2019
SO ORDERED
_________________________
SARAH L. CAVE
United States Magistrate Judge
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