Schomburg v. Bologna et al, No. 1:2012cv07161 - Document 27 (S.D.N.Y. 2014)
Court Description: OPINION re: 16 MOTION to Compel The New York County District Attorney's Office to produce the closed investigation file concerning Defendant Bologna's conduct on September 24, 2011 filed by Kelly Schomburg. Based on the reasoning set fort h above, Plaintiff's motion to compel is granted in part and denied in part. DANY is hereby ordered to unseal the Investigation File and review the contents of the file before production to Plaintiff. DANY shall produce to Plaintiff within a rea sonable time all documents contained within the File that are not privileged. DANY shall provide a log detailing documents withheld on the basis of privilege as required under Fed. R. Civ. P. 45(d)(2). Factual work product contained in the Investiga tion File shall be produced to Plaintiff within a reasonable time. Any NYPD documents shall first be disclosed to counsel for City Defendant before production to Plaintiff; any objections by City Defendant to production of such documents shall be sub mitted to the Court within 14 calendar days of disclosure. DANY, Plaintiff and City Defendant are hereby ordered to meet and confer to agree on a reasonable time for production of the documents and log to Plaintiff. All objections to DANY's claims of privilege over certain documents may be submitted to the Court. (Signed by Judge Robert W. Sweet on 3/13/2014) (lmb)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------ --- ---------------------------x KELLY SCHOMBURG, Plaintiff, 12 - aga . 7161 st OPINION New York City Police Department DEPUTY INSPECTOR ANTHONY BOLOGNA, OFFICER ARETHA BLISSETT-SMITH, CITY OF NEW YORK, and OFFICER JOHN DOE 1 through OFFICER JOHN DOE 10, Li ! Defendants. ---- -x A P PEA RAN C E S: Attorne -11 .·---:~~~its~Jl .. for the Plaintiff EMERY CELLI BRINCKERHOFF & ABADY, LLP 75 Rockefeller Plaza, 20th oor New York, NY 10019 By: Earl Ward, Esq. Debra L. Greenberger, Esq. Att for New York Count District Atto CYRUS R. VANCE, JR. District Attorney - New York County One Hogan Place New York, NY 10013 By: Susan C. Roque, Esq. 's Office Sweet, D.J. Plaintiff Kelly Schomburg has moved pursuant Procedure to Attorney's Office file Rule 45 of the non-party compel concerning ("Bologna") to ("Plaintiff" or "Schomburg") ("DANY") to Defendant New produce Deputy York the 201l. Rules County closed Inspector conduct on September 24, forth below, Federal 1 of Civil District investigation Anthony Bologna's For the reasons set Plaintiff's motion is granted in part. Prior Proceedings and Facts This action was commenced on September 24, filing of assaul t, against a 42 U.S.C. battery the and Police § negligent Officer Defendants filed negligent hiring, employment services arrest imprisonment, and 1983, false denial of Defendants. an Amended Complaint training, against arrest all ("AC") Defendants assault, battery imprisonment, medical On discipline and 2012 by the care October adding a and and and 11, claims 2012, claim of retention claims of negligent of false denial of medical care against City Defendant. Defendants in this matter include Bologna, Officer Aretha Blissett-Smith ("Blissett-Smith"), Officer John Doe 1 through Officer John Doe 10 (collectively, with Bologna and Blissett-Smith, the "Police Officer Defendants") and City of New York ("City Defendant", collectively with the Police Officer Defendants, the "Defendants"). 1 1 The AC all Schomburg and s other on September 24, women who were part 2011, of iff Occupy the PIa Wall Street protest were standing behind an orange mesh netting when Defendant Bologna used pepper ication of pepper spray, to arrest De Plaintiff. y on them. ,s Bol DANY conduct AC alleges had conduct and, an in the decided not to the Police Officer Defendants s provided no explanation The Subs to that the Police ficer Schomburg's arrest. investigation sp of 2013, cha into Bologna. De ndant publ icly stat Subsequently, Plaintiff and City Defendant sought to subpoena the file related investigation to t of Debra L. Declarat A, iff's C. invest (the "Investi subpoena records t A. produce DANY to and Ie" or "File"). rger Decl. (" files objected aintiff to 1 conce the Plaintiff's Exs. District Attorney Inspector 9/24/2011." subpoena Id. , and did not DANY Investigation ion of what is contained provided a descr tI), See Deputy sought relating to events of Anthony Bol Ex. Greenberger ion has not Investigation File as it is currently under seal. PIa iff November 19, 2013. fi d the instant motion Oral arguments were held, and 2 to compel on motion was marked fully submitted on December 11, 2013. Plaintiff's Motion To Compel Is Granted In Part Federal Rule of Civil Procedure 45 (d) (3) (A) (iii) provides that, on a timely motion, a court may quash or modify a subpoena that "requires disclosure of privileged or other four main protected matter, if no exception or waiver applies[.]" DANY grounds: (1) objected to Plaintiff's subpoena on the files are sealed pursuant to New York Criminal Procedure Law Sections 160.50 and 1.20 Plaintiff's subpoena is overbroad; (3) ("Section 160.50"); (2) the documents sought are protected by the work product pri vi lege; and (4) the documents sought are protected under the deliberative process privilege. on 160.50 Does Not Bar Production DANY first objects to disclosure of the Investigation le on Criminal 1.20 the ground Procedure ("Section disclosing such that Law it is Sections 1.20"). DANY sealed sealed 160.50 is records, pursuant ("Section statutorily absent an New York 160.50") prohibited unsealing consents from the targets of the investigation 3 to (i. e., and from order or Defendant Bologna) . , in relevant ion 160.50 p rt: Upon termination of a criminal action or proceedi against a person in favor of such a person all official records and papers relating to t arrest or prosecution [shall be sealed, and shall not be] made avai Ie to any person or public or pr agency . only to the on accused or to person's desi agent. N.Y. Crim. Pro. L. § 160.50. DANY's contention that only a \\New York Court Justice H can issue an order H \\unsealing Plaintiff the documents she seeks is incorrect. has been rej as a ims. 1 New York, No. 09 C 30, 2009) (citing Haus v. City of New York, 3375395 at Lyles v. Nov. 17, H (S.D.N.Y. Nov. 03-CV-4915, 2006 \\[I]n 2006). cases discoverability, ions, iality are governed by federal law, not Crosby 2010). v. Federal ty such No. City of and confi I (S.D.N.Y. (S.D.N.Y. an action federal senting state law. Section 160.50 . 895, 2009 WL 4276969, at *1 *2 rmitting basis to block discovery where plaintiffs are asserting WL y Supreme as of New courts York, can and 269 F.R.D. commonly production of documents sealed under Section 160.50. 4 267, do Id. 274 order at 275 ("Federal pursuant courts to commonly order production of documents Sections 1148680, at *3)).2 160.50 2006 Fountain 941242, WL v. [Section 160.50] 3375395, at see *2; City of New York, at *5-6 Haus, (citing 2006 WL When a plaintiff asserts federal claims "the state sealing statute Haus, /I sealed No. (S.D.N.Y. May 3, does not govern. also 03 Fed. Civ. 2004) R. /I Evid. 4526 (RWS), 501; 2004 WL ("A number of cases have held that a federal district court has the authority to issue an order dist compelling ct attorney (internal York, production 171 discovery and sealed quotation marks F.R.D. in files in pursuant omitted)); 92 rights the to custody C.P.L. Morrissey v. (S.D.N.Y. civil 85, federal of 1997) of the 160.50./1 § City of New ("[Q]uestions legislation are of properly governed by federal law./I). The Documents Are Relevant And Specified Plaintiff investigat that seeks fi s from a single n concerning one person's actions during an incident lasted just seconds. the DANY's Investi tion File, Moreover, Defendant the incident Bologna's investigated deployment of To unseal "criminal records to § 160.50 in the context of in a federal civil suit . . . ff can either apply to the state court to unseal the records, or can subpoena the district attorney, or seek if the district attorney is a party to the Fountain v. City of New York, No. 03 Civ. 4526, 2004 ¥IL 941242, at *6 (S.D.N.Y. May 3, 2004) (collecting cases). 5 pepper spray, excessive is ise force c conduct While the at File electronic format is exceeding itself limited is "appropriately is to the date is and relevant issue 6GB issues in Plaintiff's is size, in rgely the 1 in in an subpoena scope and [Plaintiff].N rais by likely contain Lyles, 2009 WL 4276969, at *1. The Invest ive City Police Department to the Bureau action. ("IABIf) police investi reports NYPD The NYPD ("NYPDIf) NYPD tor notes, by to obtain likely NYPD documents does not, File by deos, 6 records Plaintiff also some justify motion. and invoices, and is However , not it is served discovery rectly from the NYPD. contain itself, Affairs not composed of entirely Plaintiff has will clerk DANY. is party detective CCRB that Fi York complaint follow-up property documents Moreover, Investigative rt, TARU requests on and obtained documents the s, DANY Investigation NYPD documents. Internal rs' officers, New and the NYPD is a may off report, 1 memoranda. entitled files, complaint other occurrence will files investigative comp unusual File overlap denial of with That NYPD Plaintiff's Work Product File's Factual lege Does Product DANY see Not Apply To The to withhold the documents at ground that they are subject to the work work product doctr under Fed. R. things, (3) (2) 2024, Inc. , Wright at 20, Sept. A. since 269 F.R.D. that the when a relat it No. 05 Civ. is 77 creates a s or tangible i or for trial, sentative. Practice Procedure Tech. v. Uniroyal, in of a not meet the li ti party to in ior a her Rule 26 (b) criminal work (quoting 2006 WL does third See ion. ("'[C]ourts have consistently held [set lawsuit.'" 8453, not at 27 discovery civil DANY Here, prosecutor to Polycast (1970) ; privilege ects Federal Miller, 1990) . irement, Crosby, (1) The cry. 3297 (CSH) , 1990 WL 138968, at *1 (S.D.N. Y. 87 No. 26(b) or by or for the party's & 196-97 P. ipation of 1 ant by or for a pa See 8 C. § prepa issue on the doctrine. Civ. qualified immunity from discovery for: Investigation later by in Abdell v. at unavailable investigation product 2664313, is ali a New York, City *3 apply, the 14, (S.D.N.Y. 2006) ) ) . While doctr Rule 26(b) art i c u 1 ate din s Hi c km an, 7 not 32 9 U. S . 495 , work-product 5 08 , 67 S. Ct. 385, 91 L. Ed. 451 (1947), and its progeny may. "[C]ourts extended work-product protection to non-parties when [doing so] vindicated doctr purposes underlying the [Hickman] " Crosby, 269 F.R.D. at 277 (quoting Jean v. City of New York, No. 09 801 , Ci v . 2010 WL 1484 20 , *2 at ( E . D. N . Y . Jan. 12 , 20 10) ) . There are three such purposes: "protecting an attorney's to formulate opponents legal from 'free loading' inter preventing theories rence and prepare cases, off their with preventing rsaries' ongoing liti lity work, and Id. ion." (citations omitted) . When product, iding whether to a distinction between r dis or legal theories of an attorney, 2664313, dis at is Factual *6. work en made. 0 work sions, product ions, Abdell, is 2006 subject to ure once plaintiff has demonstrated substantial rdship, undue "core work product stringent protection," protection that ," abso "To obta Crosby, 269 F.R.D. at the core work product plaintiffs must need." of ctual work product and "core" work product, or the "mental impressions, conc WL osure is 277-78 8 ent to "'absolute' (c contained in establish a highly Id., at 279-80. is and or more 'near ations omitted). memorandum, rsuasi ve showing to With Investigation here. File, the factual work product work product protection has no applicat Many of the documents sought were prepared by prosecutors "with the expectation se attorneys may obtain them as material." Rosario People v. Rosario, 2006 1, WL 213 N.Y.S.2d 448, the court ordered DANY to s se 2664313, 450 51 at *5 (1961)). ing In Abdell, ctual content contained in "DA Data Sheets" but ion of portions that were considered core work Here, does not raise any speci c s as as in to Crosby, why should extend to the factual work product in the le; core DANY work instead argues product. for t extension Protection of formulate legal theories and an of DANY protection Investigation protection attorney's ability to to cases is thus not an issue this instance. Plaintiff's request Investigat for so not an instance of "free-loading". 1 case, issues in [the] is not seeking the information 'lazy' to develop in ion solely " the information within the e himself, possession of tation and quotation marks omitt 9 is "[Pllaintiff's attorney is seeking information directly pertinent to t c Files [s]he is too and t is seeking secuting ). With interfering expressly 2664313, regards with decided at litigation" *6 Plaintiff, pursue a to (no and "the is pursue factor, moot of nor is one no who risk other have that suspects been spute that pepper spray on one day are in the noted leo None of the three factors product "ongoing prosecutors may that WL since Defendants deployed has 2006 with long about DANY Abdell, interfering cases the concern because charges. Plaintiff against Investigation case criminal was there case last "danger" Neither Bologna the criminal not where terminated") . Defendant a to protection explained in Abdell, to the extending factual work Investigation File. As the court "courts have regularly held that in cases of alleged police misconduct, plaintiffs have a substantial need to discover statements that the officers made to prosecutors." Id. at *7 C-04-5459, While (citing Boyd v. 2006 WL 1141251, no description has at *4 (N. D. PI in the ntiff's claims. File Cal. been provided to the the contents of the Investigation File, contained San Francisco, City and County will As such, likely t carry May 1, Court factual in No. 2006)). regarding rmation significance for Plaintiff has met her burden as to the Investigation File's factual work product. 10 Al though the work Investigation product File's protection factual work In any event, not s extend to Plaintiff's product, briefs are not clear as to whether she wor k product. will request for core iff has not demonstrated "a PIa highly persuasive showing of need" needed for core work product. aintiff is not ent 269 F.R.D. at 279-80. Crosby, File. core work product in the Investigat PIa privil under iff contends that by Fed. failing R. Civ. to DANY has waived any claim of produce P. led to a vilege 45 (d) (2)," see In log re as red Application For Subpoena To Kroll, 224 F.R.D. 326, 329 (E.D.N.Y. 2004), and that an ilure pr "unjustified required list as Co. a v. waiver Forman 3771010, at *7-8 the stigation counsel to n. Nei 1) ¢ instance. of any Int'l (S.D.N.Y. is DANY has r applicable privil the 04 Ltd., Dec. sea 15, reviewed its Kroll nor documents pr lege," 2271(RWS), 2006). OneBeacon 2006 prosecutor contents. is the WL According to DANY, ther OneBeacon on ly and proper manner CIV. and (Def. Opp. e appli at in nor 2, s In Kroll, the subpoenaed non-party refused to prepare a privilege log and argued reveal ileged of withheld documents in a t operates Ins. to date 224 of F.R.D. the at the in formation 328. rmation on the log would of the In reaching 11 attorney-client s de sion, the Eastern District of New York court held that attorney-client privilege did not extend to the information the non-party sought to protect; privilege the non-party's refusal log only prevented the to prepare court's and reveal a "ability to determine whether the documents requested in the subpoena are protected by a privilege." Id. at The 329. non-party Kroll in prevented from producing a privilege log by state is currently inapplicable, prevented as the from movant OneBeacon here. OneBeacon in not as law, is sought was DANY similarly production documents withheld as privileged by the plaintiff in the not a non-party. I d., 2006 WL 3771010 , at *1 . of case, DANY's failure to procure a privilege log does not waive any claim of privilege it may have for core work product in the Investigation File. The Deliberative Process Privilege May Apply To The Investigation File, But Application Of The Privilege Cannot Be Determined At This Time The disclosure deliberative by which In re Litig., reflecting documents recommendations and deliberations governmental Methyl 643 Supp. Butyl 2d quotation marks omitted). 439, privilege "protects advisory comprising part decisions Tertiary F. process and Ether 441 policies (MTBE) are from opinions, of a process formulated." Products Liability 2009) (internal (S.D.N.Y. It exists "to enhance the quality of 12 agency decisions, those who make Deliberative by protecting open and frank them wi thin process Government." applies i.e., predecisional, the when prepared scussion among in a document order to F.3d 350, omi tted) . an " (1 ) agency deliberative, related to the process by which polic are formulated." 411 441 42. is assist decisionmaker in arriving at his decision, and (2) i.e., actually at Id. Nat'l 356 Council (2d Cir. of La Raza 2005) The privilege does are "purely factual". not v. Dep't (internal Justice, quotation marks apply to any documents ty of New York, MacNamara v. s that 249 F.R.D. 70, 89 (S.D.N.Y. 2008). To aim invoke the deliberative-process of improper." the In re privilege MTBE, the head the review. the Investi attorney Supp. 2d at DANY has not submitt File in support invoked DANY tion an F. agency pri vi lege . deliberat since of by 643 quotation marks omitted). "[t]he the is sealed of is therefore 443 (internal any affidavit the privilege and . The claim of generally, unavailable for Given the status of the File and that the contents of the File are not known, the lege . must be lodged by the head of the agency . assertion from p Investigation File DANY will have the opportunity to review to see deliberative-process privilege. 13 if it wishes to raise t Conclusion Based on the reasoning is hereby forth ordered to unseal File and review the contents of the Pla iff. time all pr C Plaintiff's the fore le Investigation production to DANY shall produce to Plaintiff wi thin a documents on P. contained DANY leged. withheld above, rt and denied in part. motion to compel is granted in DANY set the shall basis provi le 11 be work as the File log a privilege Factual 45(d)(2). Investigation of within detailing that contained to are not documents required under product produced reasonable Plaintiff Fed. R. in the within a reasonable time. sclos Any NYPD documents shall first be for City objections shall be before Defendant by City submitted Defendant to the production to Court to production within 14 to counsel Plaintiff; of such calendar any documents days of disclosure. DANY, ainti and City Defendant are hereby ordered to meet and confer to agree on a reasonable t 14 for production the documents and log to Plaintiff. All object s to DANY's certain documents may be submitt claims of pr to the Court. It is so ordered. New York, NY March 1 2014 '1 ' 1 SWEET 15 ilege over
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