Stinson et al v. The City of New York, No. 1:2010cv04228 - Document 102 (S.D.N.Y. 2014)

Court Description: OPINION. For the foregoing reasons, Defendants' motion for reconsideration is denied, and Plaintiff's request for the City to provide non-party officers with a statement relating the potential conflict of representation by corporation couns el is granted. It is so ordered. re: 89 MOTION for Reconsideration of the Court's February 11, 2014 Order directing the City to provide CompStat meeting videos requested by plaintiffs for review by their counsel, irrespective of the privileged material on the videos filed by The City of New York, Raymond W. Kelly. (Signed by Judge Robert W. Sweet on 3/24/2014) (rjm) Modified on 3/25/2014 (rjm).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------- ------ -------x SHARIF STINSON, et al., PIa iffs, 10 Civ. 4228 - against ­ OPINION CITY OF NEW YORK, et a1., Defendants. ------------ ------ ----x A P PEA RAN C E S: Att the Plaintiff COHEN & FITCH LLP 225 Broadway New York, NY 10007 By: Joshua P. Fitch, Esq. raId M. Cohen, Esq. THE LAW OFFICES OF JON L. NORINSBERG 225 Broadway, Suite 2700 New York, NY 10007 By: Jon L. Norinsberg, Esq. QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd oor New York, NY 10010 By: Stephen R. Neuwirth, Esq. Steig D. Olson, Esq. Elinor C. Sutton, Esq. Atto for the Defendants MICHAEL A. CARDOZO CORPORATION COUNSEL OF THE CITY OF NEW YORK 100 Church Street New York, NY 10007 By: Qiana C. Smith-Williams, Esq. Zachary W. Carter, Esq. Steven M. Silverberg, Esq., Of Counsel 1 Swee t , D. J . , Defendants have moved, pursuant to Local Civil Rule 6.3, for reconsideration of the Court's Order of February 11, 2014 ("Feb. 11 Hearing"), directing the City of New York (the "City") to provide a limited set of CompStat meeting videos to be designated by Plaintiffs. dated Feb. 11, 2014 (See Transcript of Procee ("Feb. 11 Trans.").) Because the Defendants have fai controlling law or facts that t is denied. ngs, to identify any Court overlooked, the motion However, Plaintiff's alternative proposal, which was not previously raised, to redact privileged portions of the videos, is granted in order to appropriately balance the competing concerns involved. Plaintif Counsel from have also moved to disqualify Corporation senting non-party officers, or in the alternative requiring the City to provide a written statement to all non-party officers of City's potential conflict involved ability of the officers to seek sentation, and t independent counsel. PI the iffs' request for the requirement of a written statement is granted. 2 Prior Proceedings and Facts A iled recitation of the prior proceedings and facts of this case is provided in the April 23, 2012 Opinion granting Plaintiffs' motion for ass Certification. N.Y., No. 10 Civ. 4228 (RWS), 2012 WL Stinson v. City 1450553, at *2 5 (S.D.N.Y. Apr. 23, 2012) Famili assumed. See ("April 23 Opinion"). y with these prior proceedings and Facts re to t instant motions are set s is rth below. A. Proceedings Surrounding the Feb. 11 Hearing Relating to the CompStat Video Production In 2010, the City produced minutes of the CompStat meetings, which had en redacted based on relevance, the deliberate process privi , individual privacy concerns, and law enforcement privilege. 7,2014 object (See City's Letter, dated Feb. ("City Feb 7,2014 Ltr.").) At is t , the Ci to Plaintiffs' demand for the videotaped CompStat meetings based on confidential ilege concerns, and because the agreements in this case allegedly offered insufficient production. (See id.) 3 On January 31, 2013, Plaintiffs again moved to compel s of CompStat meet disclosure of all prec s for t given t period of May 2007 through December 2010, inadequacy and ill meeting notes. pertaining to six (See Si ility of the accompanying rberg Decl. at Letter, dated Jan. 31, 2014 ~ 3; Plaintiffs' (npl. Jan 31, 2013 Ltr.").) On February 11, 2014, this motion was heard and marked fully submitted. concerns, Plaintiffs were of the 0 red to , which based on t to the liti privi relevancy and pri To address the compet signate a limited subset notes were especial ion and which the C lege relevant y could still object to on grounds, to be viewed attorne 'eyes only: Okay. Well this is what I think we'll do. The plaintiffs will signate which videos they want. The videos 11 be produced attorneys' eyes only. The plaintiffs will indicate any ions of videos they lieve have an evident ry value, and the defendants will then have an oppo ty to assert any privilege arguments they want to make with respect to those signations. (Feb. 11 Tr. at 9-10.) The Court cautioned sanctions if any pr leged in rmation was somehow leaked, Now, I take the attorneys' eyes only very seriously_ If there is a leak in this case of any , I am going to ask united States Attorney to investigate it, because's a direct order of Court it will been lated. So I take it very seriously. And if there is any kind of a leak and can be proven, t re will hell to pay. 4 (Id. ) Following t videos Court's order, aintiffs On February 25, 2014, t marked cincts, rtaining to 56 meetings, across various encompassing approximately 170 hours of recons signated ration of Court's ly submitt deo. Y moved for r. 0 This motion was heard and on March 19, 2014. Applicable Legal Standard A motion for reconsideration is proper where "the moving party can point to controlling decisions or data that court overlooked matters, in r words, t might reasonably be expected to alter the conclusion reached by t court. II 1995) i Shra ., Inc., 70 F.3d 255, 257 see also Farez-Espinoza v. Napolitano, (HB), 2009 U.S. 2009). v. CSX Tran st. ELXIS 353 Pursuant to Local reconsider a (2d Cir. 08 Civ. 11060 , a t *9 (S.D.N.Y. Apr. 27, 1 Rule 6.3 t Court may ior decision to "correct a clear error or prevent manifest injustice." Medi Ltd. v. BestMed LLC, 2012 U.S. st. LEXIS 56800, at *2 3 (S.D.N.Y. Apr. 23, 2012) 5 (c ing RST (2005) Inc. v. Research in Motion Ltd., 597 F. Supp. 2d 362, 2009 WL 274467, at *1 (S.D.N.Y. 2009)). Defendants' Motion for Reconsideration is Denied Because there is No Evidence that the Feb. 11 Hearing Overlooked Any Controlling Law or Facts; However, Plaintiffs' Alternative Proposal, not Previously Raised, is Granted to Appropriate Balance the Competing Concerns Defendants' maintain this Court overlooked both Second Circuit's decision in se Manhattan Bank v. Turner 964 F.2d 159 (2d Cir. 1992) & ion in In re City of New York, 2010) ("In re City") in ("Chase") and the 607 F.3d 923 (2d Cir. an attorneys' eyes only 1 ion of certain CompStat videos, despite potent conflicts with the lawen 1 privilege. As an initial matter, Chase is irrelevant to t tant proceedings. , the Second Circuit, pursuant to a mandamus petition, faced a comparable issue but lege dispute. an attorney-client vacated the Magistrate of the documents with t t context The Second Circuit 's order, which allowed production attorneys' eyes only 1 tation, because it would permit the precise type of disclosure the attorney-client pr disclosure to opposi Ie was designed to prevent, namely, counsel in the litigation, and would 6 undermine the purpose of privil , to encourage free full communication between lawyer and client. The opinion explains, In the case of the attorney-client privi . a litigant claiming the pr lege wou probably prefer almost anyone r than rsary counsel to ew the documents in question. The attorne '-eyes-only condition simply not limit disclosure to persons whose knowledge of confident 1 communication is not material to the purpose of t privil To the contrary, it allows one kind of critical disclosure -­ to opposing counsel in 1 igation the p lege was designed to prevent. . the pr lege rests on the belief that in an adversary system, a ient's 11 dis sure to an attorney is a necess predicate to skillful advocacy and lly informed le 1 advice. The existence of the ivilege thus allows attorneys to assure ients any information given their attorneys will remain confidential. If opposing counsel is allowed access to information arguably protected by the privilege fore an adjudication as to whether privi applies, a pertinent aspect of confidentiality will be lost, even though communications later deemed to be privileged 11 be inadmissible at trial. Most importantly, an attorney cannot assure a client of complete con iality if the procedure at issue here becomes routine. At best, an attorney can assure the client that the communication, although made known to adversa , will not be admiss e as evidence at t a l . This limited assurance, however, will not to ensure free full communication by s who do not rate y a pr lege that is operative only at the time of trial. Id. at 154 65 (emphasis added). 7 While import, as the lege is of e law enforcement underlying concerns of, se opinion shows, and the potential consequences of torneys' eyes only limitation relating to, the two pri leges are diss lar. Opposing counsel having access to attorney-client in tical harms the absolute privilege is one of the 1 rmation is signed to prevent; if a client worries adversary will to his communications, a chilling ef ct is almost law enforcement contrast, access n. In lege aims to protect investigate tactics and conf ial individuals to the public at large. Oppos attorneys accessing the information protect. disclosure confidence is not what the privi Further, the lawen aims to privilege is ified, and as such "there are circumstances in which information subject to includi City en privile privilege must nevertheless be disclosed," relevance absent alternative means. N.Y., 607 F.3d 923, 940 (2d eir. 2010) privilege is a [thus] there are 11 Hearing ("[T]he law ed privilege, not an absolute li rcumstances in whi subject to the privilege must nevertheless be such, See In re the information sclosed."). not overlook or contradict the Chase 8 As Similarly, the Court's ruling did not contravene any bright line obligation imposed in In re City. In In re City, the Second Circuit addressed an attorneys' eyes only confidentiality restriction in the context of a Magistrate Judge's disclosure order of documents the City claimed should be protected by the law enforcement privilege. The Magistrate Judge held that certain NYPD investigate field reports were categorically relevant to plaintiff's case and could, notwithstanding the law enforcement privilege, be disclosed with certain redactions made by the Magistrate Judge, with disclosure on an attorneys' eyes only basis. The Second Circuit decided that mandamus review was appropriate and vacated the Magistrate Judge's order. The Second Circuit admonished that the consequences of accidental disclosure of information protected by the law enforcement privilege were too severe to be employed, stating, Even if the "attorneys' eyes only" procedure works in some commercial litigation, as well as some criminal cases. . the consequences of accidental disclosure are too severe to employ the procedure here. [TheJ accidental disclosure of the Field Reports risks undermining important NYPD investigatory procedures and thereby endangering the safety of law enforcement personnel and countless New York residents. Not only is that injury more severe, it is far more difficult to remedy. [IJf confidential law enforcement information is disclosed on an "attorneys' eyes only" 9 basis, the ice may never know if their undercover operations been compromised by an horized disclosure of that information. In re ty of New York, furt noted the i 607 F.3d at 936. lity of courts to mainta when confidential materials are fil su The Second Circuit total secrecy "under seal," and the disclosure in the case at bar. cted unauthoriz The Second Circuit limited its ruling to the See id. s presented in case at bar. Despite Defendants' contentions, the order in the Feb. 11 Hearing is not "virtually se, or warned a ical" to t inst in In re City. (De struck down s' Reconsideration Memorandum, "Def. Recon. Br."; at 9.) 11 Hearing did not, as Defendants contend, sclosure of ially irre opposing counsel." (Id. ) The r the "wholesale and pr leged materials to Instead, the Court specified that Plaintiffs should designate those videos most relevant to the stant lit and that "t any privi designations." ion, based on t notes descr ing the meetings, fendants will then have an opportunity to assert arguments want to rna (Feb. 11 Trans. at 9-10.) 10 with respect to those Accordingly, De ndants' current position represents more a disagreement with the Court's Order in the fered 1 ence of any 1 basis to conclude that the decision was "obviously wrong," than a showing of "manifest injustice," and reconsideration is inappropriate. Cohn v. Metro Li Ins., Co., No. 07-Civ-0928 (HB), 2007 WL 2710393 (S.D.N.Y. Sept. 7, 2007). wholesale production of the As an alternative to videos to Plaintiffs, the City now maintains it is prepared to provide Plaintiffs with relevant portions of the CompStat videos pertaining to t six police prec s for which they sought production, on a rolling basis, over the next 30 days. A reconsideration motion is an inappropriate avenue for this request, as the City previously maintained that such an alternat accomplish. was impractical, if not virtually impossible, to See IP Innova on LLC v. Vizio, Inc., No. 08-Civ­ 393, 2010 WL 245557, at *2 (N.D. Ill. Jan. 13, 2010) ("Thus, it is improper for Defendants to seek a reconsideration of the court's ruling when during the briefing of the claim construction Defendants took a contrary position. Defendants d not raise their new proposed constructions in a timely manner."); (see also Lt. Corbett Decl. ~ 21 ("I am unaware of any practical method of isolating any mention of C-Summonses 11 issued by a subset of six NYPD precincts on videos I do not believe there is a practical way to produce the video aintiffs are currently seeking without also recordings that divulging highly confidential information that has no connection issuance of C-Summonses, particularly not in whatsoever to ion."; context of this liti Letter from Q. Smith-Williams to S. City's September 24, 2013 son, stating that they "are aware of no practical method for excising in rmation from either audio or video recordings of the COMPSTAT meetings.").) Throughout discussions concerning the CompStat videos, Defendants consistently contended that there was no way to produce reques communications. such a information without capturing pr In leged , the Court specifically tried to strike ance by asking City if such a procedure was possible and the City maintained that it was not: THE COURT: I assume t h a t ' s not technologically possible to search the vi os for, say, reference Ii summons. I take you don't have that capacity? MS. SMITH-WILLAIMS: No, your Honor . . 11 Trans. at 11712.) There is some credence to Plaintiffs' contention the City employed inappropriate gamesmanship in withholding the 12 proposed alternative only to now suggest what they initially maintained was impractical. However, given the import of such an privilege concerns involved, now t Court compet ion exists, s that this alternative more adequat y balances City's re concerns at stake, and st to amend in redact the videos its initial position ivilege be re production is grant The City 11 provide a privilege log with re the redacted portions of the s, at wh point Plaintiffs will have the opportunity to object and liti object This with Defendants " 11 ostens lateral y alleviate ions." to e such aintiffs' concern intiffs' opposition Memorandum, "Pl. Recon. Opp."; at 14 15.) Corporation Counsel Must Provide a Written Statement to Non­ Party Officers Disclosing the Potential Conflict in the Counsel's Representation and Advising the Officers of the Appropriateness of Seeking Independent Counsel Plaintiffs also move to disqualify Corporat from representing individual sitions in ice off rs at any Counsel ure s matter, given the conflict of interest the City and the individual police officers who may testify in this action. both parties. However, as This inherent conflict is apparent to Court specified dur 13 the March 19, 2014 Hearing, City maintains that they are not senting Non-Party Officers. This assertion will credited. The present issue concerns whether the C should be required to provide the non-party officers a statement in writing speci ng this privil and the right of the officers to seek independent counsel, whi the City rna done and will continue to do ve lly, and ains it has the Plaintiffs may inquire as to what exactly the City has relayed to the officers concerning this conflict during depositions 1 ¢ The City is correct that in the course of defending the City and its interest, co may continue, to confer with City. See, e.g., Coleman v. ration counsel is permitted, and officers, as employees of t ty of New York, LEXIS 10405 at *5 (S.D.N.Y. July 8, 1999) Counsel's Of agencies . with non- ce is the 1 [a]s such, 1999 U.S. Dist. ("[TJhe Corporation 1 counsel for the City and C Corporation Counsel's discussion rse City employees about in which the City (or City agency) is a ir deposition a case fendant is by the City's attorney-client and/or work-product pr ected 1 ¢ /I) ¢ : According to Plaintiffs, the City has claimed lege when Plaintiffs have asked non-party orrlcers whether the City's corporation counsel informed the officers f the conflict of corporation counsel's representation. 14 As such, communications between corporation counsel and non­ party officers relating to depos pr ion preparation are See id. leged. However, Plaintiffs do not seek to inquire as to the content of co ion counsel's preparation of relating to the depositions. officers Defendants' acknowledgement to the officers of an inherent conflict in representation of the officers by corporation counsel, and the ability of the officers to seek independent counsel, is not subject to privile , but is an appropriate and necessary instruction. Though the City is correct that such statements are not a wa r, the City has agreed to instruct the 0 cers of this potential conflict and Plaintiffs have the right to verify s assertion. ven the continued conflict between the parties relat to this issue and others, to avoid unnecessary delay and further contention, the City will prepare a proposed statement to relay to of of cers, det ling the potential ict sentation by corporation counsel and the right of the officer to seek independent counsel, which it will have the officers sign prior to deposition scussions and which it will provide to Plaintiffs prior to that officer's deposition. Plaintif will then the ability to ask the officer if he 15 understands the statement in question, but may not inquire as to further communications t officer had with city relating to preparation of the deposition. Conclusion For t foregoing reasons, Defendants' motion r reconsideration is denied, and Plaintiff's request for the City to provide non-party officers with a statement relating the potential conflict of representation by corporation counsel is granted. It is so ordered. New York~ March~ 'f' NY 2014 16

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