The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
Plaintiff Allocco Recycling, Ltd. ("Allocco") has served a subpoena
upon non-party Urbitran Associates, Inc. ("Urbitran") requesting the
production of certain documents prepared by Urbitran for the New York
City Department of Sanitation ("DSNY"). Allocco has also requested these
same documents directly from DSNY in demands for documents pursuant to
Fed.R.Civ.P. 34. In response, defendant John Doherty, Commissioner of
DSNY, has moved to quash the subpoena under Fed.R.Civ.P. 45(c) or for
a protective order under Fed.R.Civ.P. 26(c) on the grounds that the
documents are not relevant, that their production is unduly burdensome,
and/or that they are protected by the deliberative process privilege.
Allocco has cross-moved for an order pursuant to Fed.R.Civ.P. 37
compelling the production of these documents and other documents
responsive to its Rule 34 demands for documents.
For the reasons stated below, the documents are not protected by the
deliberative process privilege. Doherty's arguments regarding relevance
and burdensomeness will be adjudicated in a separate ruling. I. BACKGROUND
The complaint in this action alleges that Doherty violated Allocco's
rights under the Due Process Clause of the Fourteenth Amendment and the
Commerce Clause of the United States Constitution when DSNY denied
Allocco's application for a modification of an existing permit to operate
a "fill material transfer station." See Amended Civil Complaint, filed
July 21, 2003 (Docket #5) ("Complaint"), ¶¶ 28-45. A "fill material
transfer station" is a structure that receives for storage
non-decomposing material such as rock, concrete, metal, paper, and
glass & pending its transfer to another location. See 5 Rules of the
City of New York tit. 16, § 4-01 (2003). Allocco claims that DSNY
incorrectly determined that there was "sufficient private transfer
station capacity" in Manhattan and hence no need for more transfer
stations or volume increases. See Complaint ¶¶ 29-31. It also claims that
the denial of the permit modification was the result of an illegal
moratorium on new private transfer stations and modifications. See id.
¶ 31. The complaint seeks damages and a declaratory judgment requiring
that, inter alia. DSNY issue Allocco a modification of its existing
transfer station permit. See id. ¶¶ 45, 47.
B. DSNY's Relationship with Urbitran
Urbitran is a multidisciplinary firm of engineers, planners, and
architects headquartered in New York City. Declaration of Robert Michel,
dated January 14, 2004 ("Michel Decl.") (annexed to Notice of Motion,
filed January 14, 2004 (Docket #17) ("Notice of Motion")), ¶ 1. It
provides a wide range of technical and project management services to its
clients, ranging from small studies to complex efforts involving design,
construction, and management issues in areas such as traffic, transportation, engineering, and environmental
planning. Id. DSNY is Urbitran's client for two ongoing projects for which
Allocco has requested documents. Id. ¶¶ 2, 8.
1. The Commercial Waste Management Study
Urbitran was retained by DSNY in 2000 to perform a survey of waste
carters licensed to operate within New York City. Id. ¶ 2. This survey
was entitled the "New York City Comprehensive Commercial Waste Management
Study" ("Commercial Waste Management Study"). Id. The purpose of this
study was to estimate the quantity, origins, and disposal locations for
waste generated within New York City. Id.
The first phase of Urbitran's work on this study entailed collecting
data on the volume, type, origin, and destination of commercial waste
carried by private carters in New York City. Declaration of Lorenzo N.
Cipollina, dated February 11, 2004 ("Cipollina Decl.") (annexed to
Declaration of Janet V. Siegel, filed February 13, 2004 (Docket #22)
("Feb. 2004 Siegel Decl.")), ¶ 4. To collect this data, Urbitran
prepared a list of carters in the region and a survey form to use in
interviewing them. Michel Decl. ¶ 3. The form prepared by Urbitran
requested the volume of waste carried for the year 2000 listed by origin
of waste, type of waste, and location of disposal. Id. Urbitran organized
teams of interviewers to perform the interviews, which involved visiting
approximately 800 carters. Id ¶ 4. Once the interviews were completed,
the completed forms were entered into a database created by Urbitran.
Id. ¶ 5. Summaries of the results were reviewed and reconciled by
Urbitran using information provided by DSNY in particular, the
quarterly reports submitted to DSNY by transfer station operators. Id.
The findings of the Commercial Waste Management Study were summarized
by Urbitran in a Preliminary Report, which was made publicly available in
June 2002. Id. ¶ 6; see New York City Comprehensive Commercial Waste Management Study: Preliminary
Report, dated June 2002 ("Preliminary Report") (reproduced in part as
Ex. G to Declaration of Lawrence B. Goldberg in Opposition to the Motion
to Quash the Subpoena to Urbitran Associates, Inc. or for a Protective
Order, filed January 29, 2004 (Docket #20)). Information contained in the
individual interview forms is summarized in the Preliminary Report.
Michel Decl. ¶ 6. As its name suggests, the Preliminary Report is not a
final report. Id. ¶ 7. A new report will be issued toward the end of
2004 and will serve as the final report of the Commercial Waste
Management Study. Id
2. The Solid Waste Management Interim Plan
In addition to assisting DSNY with the Commercial Waste Management
Study, Urbitran was retained by DSNY for a separate project to analyze
the potential environmental impacts of various interim waste disposal
options under consideration by DSNY. Id. ¶¶ 8-9. Specifically, Urbitran was
retained to analyze potential air, noise, traffic, and neighborhood
character impacts of various disposal options. Id ¶ 8. This project was
identified by Urbitran as the "DSNY Solid Waste Management Interim Plan"
("Solid Waste Management Interim Plan"). ...