Roth & Roth, LLP v City of Rochester

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Roth & Roth, LLP v City of Rochester 2023 NY Slip Op 31878(U) June 2, 2023 Supreme Court, Monroe County Docket Number: Index No. E2020007203 Judge: William K. Taylor Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. 202306021267 FILED: MONROE COUNTY CLERK 06/02/2023 04:51 PM NYSCEF DOC. NO. 86 Index # : E2020007203 INDEX NO. E2020007203 RECEIVED NYSCEF: 06/02/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE ROTH & ROTH, LLP, Petitioner, DECISION AND ORDER Index #E2020007203 vs. CITY OF ROCHESTER, Respondent. Submitted Special Term March 2, 2023 Appearances: Elliot Shields , Esq., for Petitioner John M. Campolieto, Esq., for Respondent Taylor, J., Before the Court are several motions flowing from a December 23, 2021 order of the Appellate Division modifying a December 29, 2020 judgment of Supreme Court (Piampiano, JSC) in the underlying article 78 proceeding concerning Respondent's denial of access to records Petitioner requested under the Freedom of Information Law ("FOIL") : Specifically, it was held that "the judgment impermissibly expanded the relief granted to petitioner in the decision." Roth & Roth, LLP v City of Rochester, 200 AD3d 1728 (4 th Dept 2021). Relevant to resolving the instant dispute, and left unmodified by the Appellate Division's order, was a decretal paragraph in the judgment ordering Respondent to produce "all communications by any RPD Officers and/or City employees related to the incident ... and all ... other records containing factual data 1 [* 1] 2 of 5 202306021267 FILED: MONROE COUNTY CLERK 06/02/2023 04:51 PM NYSCEF DOC. NO. 86 IndexNO. #: E2020007203 INDEX E2020007203 RECEIVED NYSCEF: 06/02/2023 related to the incident ... [and such] communications and records must be produced that were created between March 23, 2020 to the date of production in response to this Order." See Doc. No . 81. Production of responsive material has not yet concluded. Indeed, while Respondent has produced voluminous responsive material in an ongoing manner pursuant to the underlying FOIL request and as a result of the · modified judgment, it has objected to further disclosures as detailed in a privilege log 1 and the materials referenced therein were submitted to t he Court for in camera review. Thus, Petitioner now moves for several forms of relief. First, Petitioner asks that Respondent be held in civil contempt pursuant to Judiciary Law§ 753 for allegedly failing to comply fully with the modified judgment by not producing all responsive material. Second, Petitioner challenges Respondent's privilege log and most notably argues that, even if the attorney-client privilege and various Public Officers Law exceptions applied as Respondent suggests, Respondent's conduct knowingly waived such privileges. In opposition Respondent argues that, after the Appellate Division decision, it produced all responsive material except for those items contained in its privilege log that it claims are subject to either the attorney-client privil e ge or other grounds for nondisclosure pursuant to various provisions of the Public Officers See Doc. No . 84, Pr i vilege Log. 2 [* 2] 3 of 5 202306021267 FILED: MONROE COUNTY CLERK 06/02/2023 04:51 PM IndexNO. #: E2020007203 INDEX E2020007203 NYSCEF DOC. NO. 86 Law. RECEIVED NYSCEF: 06/02/2023 For the reasons that follow Petitioner's motion to hold Respondent in civil contempt is DENIED, but Respondent is ordered to produce all items contained in the privilege log except for those items delineated as not related in said log. The attorney-client privilege can be waived "by placing the subject matter of co u nsel's advice in issue and by making selective disclosure of such advice.n See, Oreo Bank, N.V. v Proteinas Del Pacifico, S.A., 179 AD2d 390 (1 st Dept 1992). Such is the case Even assuming arguendo that Respondent met its burden of here. demons t rating that its assertions of attorney-client privilege and Public Officers Law provisions protected from disclosure those materials contained in the privilege log related to the underlying FOIL application, the Court agrees with Petitioner that Respondent waived those protections. Specifically, the waiver was accomplished by the representatives of Respondent affirmatively placing selective privileged materials into the public sphere through v arious public statements 2 , memoranda 3 and reports. 4 See generally, Village Bd . of Vil. of Pleasant vi lle v Rat tner, 130 AD2d 654, 655 (2d Dept 1 987) ("[S]elective disclosure is not permitted as a party may not rely on the protection of the privilege regarding Nos. 70, WHAM article re Tim Curtin press conference on 9-42020; Doc. No. 71, Chodak interview with Mayor Warren discussing advice from Curt i n. 2 See Doc. 3 See Doc. Nos. 68 and 6~, Smith managerial report and exhibits. 4 See Doc. No. 72, Independent Investigator's report commissioned by the Council of the City of Rochester. 3 [* 3] 4 of 5 202306021267 FILED: MONROE COUNTY CLERK 06/02/2023 04:51 PM NYSCEF DOC. NO. 86 IndexNO. #: E2020007203 INDEX E2020007203 RECEIVED NYSCEF: 06/02/2023 damaging commun ications while disclosi ng other self-ser ving commun ications. "). Petition er' s addition al challeng es to the privileg e log a re thus rendered academic . Accordi ngly, it is hereby ORDERED that within 30 days of entry of this decision and order Respond ent shall produce those materia ls containe d in the privileg e log except for those items delineat ed as "(Not related) " as said items are not responsi ve to the underlyi ng FOIL request, and it is further ORDERED that Petition er's motion to hold Respond ent in civil contemp t pursuan t to Judiciar y Law§ 753 is DENIED, and it is further ORDERED that Petition er shall file an applica tion for attorney s' fees and costs no later than July 21, 2023; Respond ent shall file any oppositi on papers no later than August 4, 2023; and reply papers, if any, shall be submitte d no later than August 11, 2023. Any addition al prayers for relief sought but not specific ally addresse d herein are DENIED. This constitu tes the Decision and Order of the Court. :ld!b?WJi K. Taylor Justice Supreme Court Dated: June 2, 2023 4 [* 4] 5 of 5

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