Keyes v. The City Of New York et al

Filing 47

ORDER granting 37 Motion to Quash. Accordingly, DANY's motion to quash is granted. The Court concludes, however, that the results of any adverse internal investigation or disciplinary proceeding involving the Defendant officers in connectio n with this incident may be subject to production in discovery. While opinion work product is broadly protected, "fact work product" encompassing factual material, including the result of a factual investigation," In re Grand Jury Subpoena, 510 F.3d 180, 183 (2d Cir. 2007) must be produced upon a showing of substantial need and the inability to obtain its equivalent from other sources. If any such investigations or proceedings involving this incident occurred and resulted i n adverse findings regarding any of the Defendant officers, the Court will entertain a motion to compel production of any pertinent documents that have not already been produced. If there was no such investigation, proceeding, or adverse finding, DANY may so state in a declaration or affidavit. SO ORDERED. (The Clerk shall close the motion at Docket No. 37.). (Signed by Judge J. Paul Oetken on 1/9/2020) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MYTAYARI KEYES,
Plaintiff,
18-CV-4712 (JPO)
-vORDER
THE CITY OF NEW YORK et al.,
Defendants.

J. PAUL OETKEN, District Judge:
The District Attorney for New York County (“DANY”) has moved to quash nonparty
subpoenas served by Plaintiff on Assistant District Attorneys Tania Fiedorek and Jeffrey
Levinson. (Dkt. No. 37.) Having reviewed the parties’ submissions (Dkt. Nos. 38, 39, 42, 43, &
44), the Court grants the motion to quash but orders certain related discovery.
First, Plaintiff seeks the deposition of ADA Fiedorek, who interviewed one of the
Defendant police officers (Cassidy) and wrote notes of the interview in the “DA datasheet” based
on the interview. The Court agrees with DANY that deposition testimony by Fiedorek is
unlikely to be relevant and is not proportional to the needs of the case under Federal Rule of
Civil Procedure 26(b)(1). The datasheet notes have been produced to Plaintiff. Fiedorek was
neither the investigating prosecutor nor the trial ADA. In the unlikely event that she might recall
something from the interview beyond the contents of her notes, such testimony would be
protected work product insofar as it would reveal her mental impressions and opinions.
Second, Plaintiff seeks the deposition of ADA Levinson, a supervising ADA who briefly
appeared during the criminal trial at the request of the trial assistant. Plaintiff requests the
deposition of Levinson “to discover whether DANY investigated the Defendant[] [officers] and
the results of that investigation.” (Dkt. No. 42 at 4.) The opinions of Levinson or others in the

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District Attorney’s office about the credibility of the officers would be irrelevant and likely
protected work product. As to whether DANY investigated the officers, Plaintiff provides no
reason for concluding that a deposition of Levinson is necessary or appropriate. The Court
concludes that a deposition of Levinson is unlikely to be relevant and is not proportional to the
needs of the case.
Accordingly, DANY’s motion to quash is granted.
The Court concludes, however, that the results of any adverse internal investigation or
disciplinary proceeding involving the Defendant officers in connection with this incident may be
subject to production in discovery. While opinion work product is broadly protected, “fact work
product” — encompassing “factual material, including the result of a factual investigation,” In re
Grand Jury Subpoena, 510 F.3d 180, 183 (2d Cir. 2007) — must be produced upon a showing of
substantial need and the inability to obtain its equivalent from other sources. If any such
investigations or proceedings involving this incident occurred and resulted in adverse findings
regarding any of the Defendant officers, the Court will entertain a motion to compel production
of any pertinent documents that have not already been produced. If there was no such
investigation, proceeding, or adverse finding, DANY may so state in a declaration or affidavit.
SO ORDERED. (The Clerk shall close the motion at Docket No. 37.)
Dated: January 9, 2020
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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