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ALLOCCO RECYCLING, LTD. v. DOHERTY

April 9, 2004.

ALLOCCO RECYCLING, LTD., Plaintiff, -v.- JOHN DOHERTY, individually and as Commissioner of the New York City Department of Sanitation, Defendant


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

MEMORANDUM DECISION

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

  A. The Complaint

  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"). ...


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