Dorce et al v. City of New York et al

Filing 304

OPINION & ORDER. For the reasons set forth above, the Court holds that the Privilege is inapplicable to the Withheld Documents. In addition, because the TPT Defendants have withdrawn their assertion of the Privilege as to the TPT Withheld Document s, which are relevant and must be produced. By November 27, 2023, the City Defendants shall produce the Withheld Documentsother than Exemplars 3 and 6, the applicability of the work product protection to which Plaintiffs do not dispute (see n.7, supra)to the extent they are not otherwise privileged, and the TPT Defendants shall produce the TPT Withheld Documents. By November 28, 2023, the parties shall file a joint letter confirming Defendants compliance with this Opinion and Order. SO ORDERED. (Signed by Magistrate Judge Sarah L. Cave on 11/14/23) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
McCONNELL DORCE, et al.,
-v-

Plaintiffs,
CIVIL ACTION NO.: 19 Civ. 2216 (JLR) (SLC)

CITY OF NEW YORK, et al.,

OPINION & ORDER
Defendants.

SARAH L. CAVE, United States Magistrate Judge.
I.INTRODUCTION
Plaintiffs McConnell Dorce, Cecilia Jones, and Sherlivia Thomas-Muchison (together,
“Plaintiffs”), brought this putative class action alleging that Defendants1 used and conspired to
use in rem proceedings to seize Plaintiffs’ properties based on asserted tax debts, and have failed
to compensate Plaintiffs for the excess value of their properties, in violation of the United States
Constitution, New York State Constitution, and New York State law. (See generally ECF No. 91).
The City Defendants have asserted the deliberative process privilege (the “Privilege”) as grounds
to withhold from production certain documents that they contend reflect the City’s policy
decision-making processes (the “Withheld Documents”). (ECF Nos. 290 at 1; 291 at 9–11; 298 at
1–2). 2 Now before the Court is Plaintiffs’ letter-motion to compel production of the Withheld

Defendants are the City of New York (the “City”), Louise Carroll (“Carroll”), Commissioner of the New
York City Department of Housing Preservation and Development (“HPD”), Sherif Soliman, Commissioner
of the New York City Department of Finance (“DOF”, with the City and Carroll, the “City Defendants”),
Neighborhood Restore Housing and Development Fund Co. Inc. (“Neighborhood Restore”), and Bridge
Street Kings Covenant Housing Development Fund Company Inc. (“Bridge Street”, with Neighborhood
Restore, the “TPT Defendants”).
2
Although the TPT Defendants initially asserted the Privilege as to three documents (the “TPT Withheld
Documents”), they subsequently informed Plaintiffs that they withdrew their assertion of the Privilege
but continued to withhold them as not relevant. (ECF No. 296 at 2 n.3). Having listed the TPT Withheld
1

1

Documents (ECF No. 296 (the “Motion”), which the City Defendants have opposed (ECF No. 298
(the “Opposition”)). 3 For the reasons set forth below, Plaintiffs’ Motion is GRANTED.
II.BACKGROUND
A. Factual Background
The factual background of Plaintiffs’ claims is set forth in detail in prior decisions of the
Honorable John G. Koeltl and the United States Court of Appeals for the Second Circuit, and is
incorporated by reference. 4 See Dorce v. City of New York, 2 F.4th 82, 88–92 (2d Cir. 2021)
(“Dorce II”) (affirming in part and reversing in part decision granting motion to dismiss and
remanding); 5 Dorce v. City of New York, 608 F. Supp. 3d 118, 127–31 (S.D.N.Y. 2022) (“Dorce III”)
(following remand, granting in part and denying in part motion to dismiss for lack of subject
matter jurisdiction and for failure to state a claim); Dorce v. City of New York, 460 F. Supp. 3d
327, 334-37 (S.D.N.Y. 2020) (“Dorce I”) (granting motion to dismiss for lack of subject matter

Documents on their privilege log, however, the TPT Defendants “effectively admitted that they are
relevant and responsive to Plaintiffs’ discovery requests.” Ciaramella v. Zucker, No. 18 Civ. 6945 (MKV)
(SLC), 2021 WL 4219501, at *5 (S.D.N.Y. Sept. 16, 2021). Accordingly, the TPT Defendants must produce
to Plaintiffs the TPT Withheld Documents.
3
In their Opposition, the City Defendants note that “Plaintiffs attached to their Motion as Exhibit D a
document that . . . [the City Defendants] inadvertently produced notwithstanding that it contains
privileged material[,]” and that the City Defendants have “demand[ed] that the document be clawed
back.” (ECF No. 298 at 1 n.1). During a discovery conference on November 3, 2023, the parties advised
the Court that Exhibit D is not integral to the resolution of the Motion. Accordingly, the Court has not
considered Exhibit D. To the extent that Exhibit D remains in dispute, the parties may raise the issue
during the telephone conference scheduled for November 22, 2023. (ECF No. 303 ¶ 3).
4
On September 19, 2022, this action was reassigned to the Honorable Jennifer L. Rochon. (ECF min. entry
Sept. 19, 2022).
5
Internal citations and quotation marks are omitted from case citations unless otherwise indicated.
2

jurisdiction), aff’d in part, rev’d in part, and remanded by, Dorce II, 2 F.4th at 82. 6 The Court sets
forth only the factual background necessary to decide the Motion.
1. Plaintiffs’ Allegations
Briefly, Plaintiffs challenge the City’s Third Party Transfer Program (the “TPT Program”),
which was enacted in 1996 and through which the City Defendants seized and transferred to the
TPT Defendants distressed or tax delinquent properties largely owned by elderly persons of color
without compensation to the owners. (ECF Nos. 296 at 1–2; 91 ¶ 1). See Dorce III, 608 F. Supp.
3d at 127–28 (describing the TPT Program). Plaintiffs allege that the City Defendants “in recent
years” have used the TPT Program to “reward political allies” and have “systematically targeted
properties with little tax debt relative to their property value within communities of color[.]”
Dorce III, 608 F. Supp. 3d at 128 (citing ECF No. 91 ¶¶ 1, 26, 61, 169–71, 217, 306). The most
recent “round” of “mass foreclosure proceedings [] under the TPT Program . . . ended in 2018.”
(ECF No. 91 ¶ 68). As Judge Koeltl recognized in Dorce III, Plaintiffs contend that Defendants
targeted homeowners of color in the TPT Program “because, among other reasons, the
[D]efendants believe that such homeowners are ‘less likely to have the resources to mount legal
challenges’ and to have the abilities to fight the [D]efendants’ tactics.” 608 F. Supp. 3d at 128
(quoting ECF No. 91 ¶ 217). Plaintiffs allege “that there is no real mechanism for a former owner
to seek or regain their surplus equity after the property has been transferred under the TPT
Program.” Id. at *129 (citing ECF No. 91 ¶ 193). Plaintiffs contend that the “misuse of the TPT

In addition to these decisions, on July 18, 2022, Judge Koeltl denied the TPT Defendants’ request for
certification of an interlocutory appeal from Dorce III. See Dorce v. City of New York, No. 19 Civ. 2216
(JGK) (SLC), 2022 WL 3133063 (S.D.N.Y. July 18, 2022) (“Dorce IV”).
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3

Program has stripped away ‘intergenerational black and brown wealth’ and has contributed to
steep racial disparities in homeownership.” Id. (quoting ECF No. 91 ¶¶ 178, 227–28)).
2. The Withheld Documents
The Withheld Documents consist of “at least 219 documents” that the City Defendants
have withheld or redacted based on the Privilege, including 89 documents on that basis alone.
(ECF No. 296 at 2). The Withheld Documents fall into one of three categories: (i) drafts of and
communications concerning a memorandum (the “Memo”) for the Mayor of the City concerning
the TPT Program (the “Memo Documents”); (ii) DOF documents “concerning late tax payments
made by former owners” of the seized properties (the “DOF Documents”); and (iii) documents
concerning a “possible reform to the handling of water liens held by the Department of
Environmental Preservation (‘DEP’) in future TPT actions” (the “DEP Documents”). (ECF No. 298
at 1–2).
As to the Memo Documents, the City Defendants assert in the Opposition—but have not
submitted any sworn attestation from a City decision-maker—that the Memo “was drafted for
the purpose of providing the Mayor with necessary information to make a decision concerning
the then-pending in rem foreclosure actions” as part of the TPT Program. (ECF No. 298 at 2). The
City Defendants contend—without citation to any evidentiary support—that the Memo
Documents “represent a collection of background information, facts, expected and proposed
timelines for the pending in rem foreclosure actions, agency and Administration goals, and
proposals concerning the continued prosecution of the actions.” (Id.) They argue—again,
without support—that:
[a] decision by the Mayor was sought because of the formation of a coalition of
HDFCs, and the coalition’s demands, including that the City forbear from
4

foreclosing properties owned by HDFCs. The thematically related topic of City
policy reforms respecting HDFCs was also addressed, albeit minimally. Although
later versions of the [] Memo were called “HDFC Cooperatives: Reform and
Foreclosure,” the proposed reforms were addressed as a tangential issue for
future consideration.
(Id.) The Memo Documents consist of drafts of or communications regarding versions of
memoranda from HPD that are dated between June 2017 and September 2018 and contain
recommendations to the Mayor about how to proceed with foreclosures under the TPT Program.
(Exemplars 1, 2, 4–7, 9). Those recommendations include the timing and selection of properties
to be targeted for foreclosure under the TPT Program, and communications with the public about
the foreclosures. (See, e.g., Exemplars 1, 4).
As to the DOF and DEP Documents, the City Defendants provide no additional background
or context other than that set forth above. (ECF No. 298 at 2). From the Court’s in camera review
of these documents, however, the DOF Documents appear to pertain to a November 2018
analysis of properties that were transferred as part of the TPT Program but as to which DOF had
“suspended payment.” (Exemplar 3). The DEP Documents appear to pertain to a March 2010
presentation about collecting arrearages that certain HDFC properties owed to the DEP.
(Exemplar 9).
B. Procedural Background
In a joint letter dated June 30, 2023, the parties raised their dispute about the application
of the Privilege to the Withheld Documents. (ECF No. 277 at 3–4). Following a discussion during
a discovery conference on August 29, 2023, the Court set a briefing schedule for the Motion and
directed the parties to select ten (10) exemplars as to which Defendants had asserted the
Privilege. (ECF No. 290 at 1–2 (the “Aug. 29 Order”); see ECF No. 291 at 10–11). Pursuant to the
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Aug. 29 Order, on September 8, 2023, Plaintiffs filed the Motion (ECF No. 296), and on September
11, 2023, the City Defendants submitted nine exemplars (the “Exemplars”) for the Court’s in
camera review. 7 (See ECF No. 295). On September 29, 2023, the City Defendants filed the
Opposition, and on October 13, 2023, Plaintiffs filed a reply. (ECF Nos. 298; 301).
III.DISCUSSION
A. Legal Standard
The Privilege “is a ‘sub-species’ of the work-product doctrine designed to protect the
‘process by which governmental decisions and policies are formulated.’” New York v. Wolf,
Nos. 20 Civ. 1127 & 20 Civ. 1142 (JMF), 2020 WL 3073294, at *1 (S.D.N.Y. June 10, 2020) (quoting
Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002)).

The Privilege protects

“recommendations, draft documents, proposals, suggestions, and other subjective documents
which reflect the personal opinions of the writer rather than the policy of the agency.” Grand
Cent. P’ship v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999); accord, Dipace v. Goord, 218 F.R.D. 399,
403 (S.D.N.Y. 2003) (quoting Grand Cent. P’ship, 166 F.3d at 482). The purpose of the Privilege is
to “preserv[e] and encourag[e] candid discussion between officials.” Nat’l Council of La Raza v.
Dep’t of Just., 411 F.3d 350, 356 (2d Cir. 2005).
The Privilege allows a governmental agency or official to withhold “an inter- or intraagency document . . . if it is: (1) ‘predecisional,’ i.e., ‘prepared in order to assist an agency
decisionmaker in arriving at his [or her] decision,’ and (2) ‘deliberative,’ i.e., ‘actually . . . related
to the process by which policies are formulated.’” La Raza, 411 F.3d at 356 (quoting Grand Cent.

The City Defendants assert that two of the Exemplars, Nos. 3 and 6, are also protected by the work
product privilege, the applicability of which Plaintiffs do not dispute in the Motion.

7

6

P’ship, 166 F.3d at 482). “Predecisional communications are those communications generated
in order to assist the agency decisionmaker in making a decision. Deliberative communications
are those relating to the process by which policies are formulated.” MacNamara v. City of New
York, No. 04 Civ. 9612 (KMK) (JCF), 2007 WL 755401, at *9 (S.D.N.Y. Mar. 14, 2007).
“The party asserting the [P]rivilege bears the burden of proof.” In re Grand Jury Subpoena
dated Aug. 9, 2000, 218 F. Supp. 2d 544, 553 (S.D.N.Y. 2002). The governmental agency “must
actually identify and explain the role that a given document has played in the decisionmaking
process.” Fox News Network, LLC v. U.S. Dep’t of Treas., 739 F. Supp. 2d 515, 541 (S.D.N.Y. 2010).
The agency “must be able to demonstrate that . . . the document for which . . . privilege is claimed
related to a specific decision facing the agency[,]” as distinguished from an agency’s “routine and
ongoing process of agency self-evaluation,” to which the Privilege does not apply. Tigue, 312
F.3d at 80; accord Haus v. City of New York, No. 03 Civ. 4915 (RWS) (MHD), 2004 WL 3019762, at
*3 (S.D.N.Y. Dec. 29, 2004) (“[C]ourts require a showing that pinpoints the specific agency
decision to which the document correlates, and that demonstrates that the document in
question is not merely peripheral to actual policy formation[.]”) (alterations omitted). The
Privilege does not protect factual material, and “[p]urely factual material that is severable
‘without compromising the private remainder of the documents’ consequently must be
released.” Fox News, 739 F. Supp. 2d at 541 (quoting Env. Prot. Agency v. Mink, 410 U.S. 73, 91
(1973)). Courts construe the Privilege “strictly” and “within the narrowest possible limits
consistent with the logic of its principle.” United States v. Int’l Broth. of Teamsters, 119 F.3d 210,
214 (2d Cir. 1997) (quoting In re Horowitz, 482 F.2d 71, 81 (2d Cir. 1973)).

7

“[W]here the deliberations [about a government policy] are among the central issues in
the case[,]” the Privilege may be inapplicable altogether. Burbar v. Inc. Vill. of Garden City, 303
F.R.D. 9, 13 (E.D.N.Y. 2014); see Ciaramella, 2021 WL 4219501, at *4 (finding Privilege
inapplicable where whether agency “had ‘good reasons’ for the policy decisions” was at issue);
ACORN v. Cnty. of Nassau, No. 05 Civ. 2301 (JFB) (WDW), 2008 WL 708551, at *4 (E.D.N.Y.
Mar. 14, 2008) (“When the decision-making process is itself at issue, particularly in [a] civil rights
action, the [P]rivilege and other privileges designed to shield that process from public scrutiny
may not be raised as a bar against disclosure of relevant information; it must yield to the
overriding public interest in challenging discrimination.”); Child. First Found., Inc. v. Martinez,
No. 04 Civ. 0927 (NPM) (RFT), 2007 WL 4344915, at *7 (N.D.N.Y. Dec. 10, 2007) (noting that the
“historical and overwhelming consensus and body of law within the Second Circuit is that when
the decision-making process itself is the subject of the litigation, the [P]rivilege cannot be a bar
to discovery” and “evaporates”); Azon v. LIRR, No. 00 Civ. 6031 (HB), 2001 WL 1658219, at *3
(S.D.N.Y. Dec. 26, 2001) (“[W]hen the subject of the litigation . . . is the very nature of the
decision-making process, the privilege should not foreclose the production of critical
information.”). Thus, when the information “sought may shed light on alleged government
malfeasance, the privilege is denied.” In re Franklin Nat’l Bank Sec. Litig., 478 F. Supp. 577, 582
(E.D.N.Y. 1979).
“Notably, . . . the [Privilege] is only a ‘qualified’ privilege, and, thus, must be balanced
‘against the need of the particular litigant for access to the privileged information.’” Wolf, 2020
WL 3073294, at *1 (quoting MacNamara v. City of New York, 249 F.R.D. 70, 79 (S.D.N.Y. 2008));
see In re Grand Jury Subpoena, 218 F. Supp. 2d at 553 (explaining that, even where applicable,
8

the Privilege “may be overcome by a showing of need, which is determined on a case by case
basis”). “Once the privilege is established, the court must balance the interests supporting and
opposing the disclosure.” Burbar, 303 F.R.D. at 13. The Court has discretion “to determine
whether to apply it in the first instance, not just whether it has been overcome.” In re Grand Jury
Subpoena, 218 F. Supp. 2d at 553. Courts balance the following factors in assessing whether to
apply the Privilege:
(i) the relevance of the evidence sought to be protected; (ii) the availability of
other evidence. . .; (iii) the ‘seriousness’ of the litigation and the issues
involved . . . ; (iv) the role of government in the litigation . . . ; and (v) the
possibility of future timidity by government employees who will be forced to
recognize that their secrets are violable.
Mr. & Mrs. “B”, 35 F. Supp. 2d at 229. Courts have explained that, “[i]n balancing these
interests, foremost is the interest of the litigants, and ultimately of society, in accurate judicial
fact finding.” Id.
B. Application
The Court finds that the Privilege does not shield the Withheld Documents from
disclosure to Plaintiffs for three reasons. First, as noted above, the City Defendants bear the
burden to show that the Withheld Documents are predecisional and deliberative. (See § III.A,
supra). As to the Memo Documents, however, the City Defendants, in the Opposition, simply
assert in a conclusory fashion that they were part of the Mayor’s “decision concerning the thenpending in rem foreclosure actions” in the TPT Program. (ECF No. 298 at 1–2). Aside from a
selection of the Memo Documents themselves, the City Defendants do not provide any affidavit
or declaration from “the head of the governmental agency or an appropriately qualified designee
of high authority after personal consideration of the documents[,]” which is a well-settled
9

requirement imposed by courts in this District. City of New York v. FedEx Ground Package Sys.
Inc., No. 13 Civ. 9173 (ER), 2017 WL 4155410, at *5 (S.D.N.Y. Sept. 18, 2017) (collecting cases);
see Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., No. 11 Civ. 6746 (RKE) (HBP), 2014 WL
2518959, at *4 (S.D.N.Y. June 4, 2014) (explaining that Privilege must be invoked “by the head of
the governmental agency . . . after personal review of the documents in question or by a
subordinate designee of high authority” who must provide an “affidavit contemporaneous with
the assertion of such privilege”). The City Defendants offer no explanation for their failure to
submit a declaration from anyone in a position of authority in the Mayor’s Office or elsewhere in
the City government who personally reviewed the Memo Documents—let alone any detail about
the decisions that supposedly underlie the DOF and DEP Documents—which is inexcusable given
the widely recognized requirement of such an attestation to support application of the Privilege.
See, e.g., City of New York v. Rep. of Phillippines, No. 03 Civ. 6085 (RCC) (FSM), 2004 WL 2710026,
at *9–10 (S.D.N.Y. Nov. 23, 2004) (finding that agency representative’s declaration “adequately
establishe[d]” applicability of Privilege to all but one document); Dipace, 218 F.R.D. at 404-405
(citing agency representative’s declaration in finding that Privilege applied); see also MacNamara
v. City of New York, No. 04 Civ. 9216 (KMK) (JCF), 2007 WL 1169204, at *2 (S.D.N.Y. Apr. 20, 2007)
(noting that City submitted declaration of Police Commissioner to support application of
Privilege); E.B. v. N.Y.C. Bd. of Educ., 233 F.R.D. 289, 293 (E.D.N.Y. 2005) (noting that City
submitted agency representative declaration in support of application of Privilege). In short, the
City Defendants’ “general allegations” and “cursory description” in the Opposition fail satisfy
their burden to substantiate the application of the Privilege to the Withheld Documents. United
States v. Constr. Prods. Res., Inc., 73 F.3d 464, 473-74 (2d Cir. 1996); see Montrevil v. Decker, No.
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20 Civ. 264 (WFK) (LB), 2021 WL 11690690, at *5 (E.D.N.Y. July 19, 2021) (even where agency
submitted declaration, finding that assertions were “far too general and vague to uphold their
claim of privilege”); Haus, 2004 WL 3019762, at *3 (although agency submitted declaration,
finding that assertions “in conclusory fashion” were insufficient to establish applicability of
Privilege). 8
Second, even if the City Defendants had met their burden to show that the Withheld
Documents were both predecisional and deliberative, the Privilege does not bar disclosure
because the City Defendants’ decision-making as part of the TPT Program is at issue in this action.
As Judge Koeltl recognized in finding that Plaintiffs adequately pled Equal Protection claims under
the U.S. and New York Constitutions, Plaintiffs “carried their burden of demonstrating that
[D]efendants’ unequal application of the TPT Program was motivated by racial discrimination” by
alleging that Defendants “specifically targeted homeowners of color because of racial biases,
including perceptions that people of color are ‘less likely to have the resources to mount legal
challenges’ and to have the ability to fight the [D]efendants’ tactics.” Dorce III, 608 F. Supp. 3d
at 141 (quoting ECF No. 91 ¶ 217)). The Withheld Documents pertain directly to the questions
of when, how, and why properties were selected for seizure and foreclosure under the TPT
Program. (See § II.A.2, supra). Accordingly, because the question whether Defendants possessed
“discriminatory motivation” in adopting and implementing the TPT Program is central to at least
one of Plaintiffs’ claims, “the agency deliberations are central to the case” and the Privilege is

The City Defendants’ submission of the Exemplars is not an adequate substitute for a declaration,
without which the Court lacks a timeline of, context for, and resolution of the decision-making process for
the TPT Program. Cf. Davis v. City of New York, No. 10 Civ. 699 (SAS) (HBP), 2012 WL 612794, at *6 n.9
(S.D.N.Y. Feb. 27, 2012) (finding that in camera review, which “is the exception rather than the rule,” was
inadequate to remedy deficient assertion of privilege in privilege log).
8

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inapplicable to the Withheld Documents, which speak to that key question. Davis, 2012 WL
612794, at *8 (collecting cases rejecting Privilege where the “government’s deliberations,
motivations, or thought processes themselves [were] genuinely in issue”); see Ciaramella, 2021
WL 4219501, at *5 (finding Privilege inapplicable where withheld documents were relevant to
whether agency had “good reasons” for policy decisions); Montrevil, 2021 WL 11690690, at *5
(finding Privilege inapplicable where agency’s “decision-making process about [the] petitioner’s
case and his removal [were] central to [the] petitioner’s claims”); New York v. Salazar, 701 F.
Supp. 2d 224, 237-38 (S.D.N.Y. 2010) (finding Privilege inapplicable where “several of [the
plaintiffs’] claims squarely challenge[d] the process by which the [agency] made its decision”);
see also Ebbert v. Nassau Cnty., No. 05 Civ. 5445 (FB) (AKT), 2007 WL 674725, at *11 (E.D.N.Y.
Mar. 5, 2007) (finding that the defendant agency was “afforded no refuge under the [Privilege]
to decline production of the documents at issue” where the plaintiffs “established a sufficient
basis to connect the [documents] to the [challenged] decision-making process”)).
Third, even if the Privilege were otherwise applicable, the Court finds that the balance of
the five discretionary factors weighs in favor of disclosure of the Withheld Documents. As to the
first factor, having been listed on the City Defendants’ privilege log, the Withheld Documents are
indisputably relevant to Plaintiffs’ claims. See Ciaramella, 2021 WL 4219501, at *5. As to the
second factor, the City Defendants have not meaningfully rebutted Plaintiffs’ showing that the
Withheld Documents are “[t]he only source of Defendants’ contemporaneous decision-making
process in implementing the TPT seizures[.]” (ECF No. 296 at 5). As to the third factor, Plaintiffs’
federal and state constitutional claims “seek[] to vindicate the civil rights of hundreds of former
property owners who have lost their homes.” (Id.) Thus, their claims “raise[] serious charges
12

about the fairness and impartiality” of the operations of the City’s governmental functions.
Rodriguez v. Pataki, 280 F. Supp. 2d 89, 102 (S.D.N.Y. 2003) (explaining that Privilege “should be
accorded only limited deference” in action involving claims under Voting Rights Act and Equal
Protection Clause). As to the fourth factor, the City Defendants’ actions are at the heart of
Plaintiffs’ claims, as explained above. Finally, as to the fifth factor, the “small possibility that
government employees could be chilled in their internal deliberations is outweighed by the other
factors, which balance in favor of disclosure of” the Withheld Documents. Ciaramella, 2021 WL
4219501, at *5.
IV.CONCLUSION
For the reasons set forth above, the Court holds that the Privilege is inapplicable to the
Withheld Documents. In addition, because the TPT Defendants have withdrawn their assertion
of the Privilege as to the TPT Withheld Documents, which are relevant and must be produced.
By November 27, 2023, the City Defendants shall produce the Withheld Documents—other than
Exemplars 3 and 6, the applicability of the work product protection to which Plaintiffs do not
dispute (see n.7, supra)—to the extent they are not otherwise privileged, and the TPT Defendants
shall produce the TPT Withheld Documents. By November 28, 2023, the parties shall file a joint
letter confirming Defendants’ compliance with this Opinion and Order.
Dated:

New York, New York
November 14, 2023

SO ORDERED.
_________________________
SARAH L. CAVE
United States Magistrate Judge

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