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July 20, 2004.

N.Y.C. ECONOMIC DEV., et al., Defendants.

The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge



Women's InterArt Center, Inc. ("the Center"), a not-for-profit arts organization, filed this action on April 18, 2003. Among other things, the Center asserts that defendants unconstitutionally retaliated against it for asserting its federal rights to free speech and to petition the government. Specifically, the Center alleges that defendants unlawfully reneged on a deal to transfer real property to the Center in retaliation for various lawsuits brought by the Center against both the owner of the property that it rents, the City of New York; and the property's manager, the Department of Housing Preservation and Development ("HPD"). See Complaint ("Compl.") at ¶¶ 25-30, 39, 111-12; Letter from Brinckerhoff to the Court of October 21, 2003, at 1. The Center brings claims under various provisions of the First Amendment and the Fourteenth Amendment of the Constitution. See Compl. at 111-19, 128-36. The defendants include the City of New York; Jerilyn Perine, the Commissioner of the Department of Housing Preservation and Development; the New York City Economic Development Corporation and its president, Andrew M. Alper; Daniel Doctoroff, a Deputy Mayor of the City of New York; and Michael Bloomberg, the Mayor of the City of New York ("Defendants"). Defendants have not yet filed an answer. The Honorable Deborah A. Batts directed the parties to focus discovery on the Center's federal law claims*fn1 so that the Court might determine if it has subject matter jurisdiction. See Transcript of Conference before District Judge Deborah A. Batts, June 19, 2003 ("Tr.") at 41-42. The Center and Defendants have withheld certain documents as privileged. For these disputed documents, Defendants assert

  (1) the deliberative process privilege; (2) the attorney-client privilege; or (3) the work product protection, while the Center relies on the attorney-client privilege. The documents in question have been submitted to the Court for in camera review of the applicability of the claimed protections.


  Because the claims in question at this juncture are federal in nature, the Court will review the privileges asserted by the parties under federal common law principles. See FED.R.EVID. 501. Each party "bear[s] the burden of establishing the facts on which their asserted privileges depend." See Burke v. New York City Police Dep't, 115 F.R.D. 220, 224 (S.D.N.Y. 1987).

  A. Deliberative Process Privilege

  Defendants claim that the deliberative process privilege is applicable to certain documents because they "relate to the decision-making process" and were prepared "to discuss, consider and analyze options, and alternatives in order to assist the decision-makers in arriving at various decisions." Letter from Shapiro to Wang of October 14, 2003, at 1. The Center counters that even if Defendants may assert the deliberative process privilege, the Center's claim places Defendants' decisionmaking at issue and thus defeats the privilege. See Letter from Wang to Judge Batts of October 15, 2003, at 1.

  The deliberative process privilege may be available to government officials who do not wish to disclose documents that "reflect discussions within or between agencies concerning policy or other decisional choices" and that include "analyses or suggestions designed to assist a government decisionmaker in coming to a decision about a specific issue." Dr. Michael J. Galvin v. Michael Hoblock, Jr., et al., 2003 U.S. Dist. LEXIS 16704, at *5 (S.D.N.Y. Sept. 23, 2003). To invoke this privilege, Defendants must show that "1) the materials were part of a deliberative process by which policies or decisions are formulated . . ., and 2) that the materials were truly of a predecisional, or advisory or recommendatory nature, or expressed an opinion on a legal or policy matter, or otherwise were reflective of a deliberative process." Burke, 115 F.R.D. at 231 (quoting Mobil Oil Corp. v. Dep't of Energy, 102 F.R.D. 1, 5 (N.D.N.Y. 1983)). The deliberative process privilege is based on the notion that unless confidentiality can be ensured, communications to and within the government will be stifled. See id.

  B. Attorney-Client Privilege

  The Center maintains that Defendants, through their in-house counsel, are using the attorney-client privilege to shield production of an overly broad set of documents. See Letter from Wang to the Court of November 10, 2003, at 4. It asserts that in-house counsel for Defendants participate in a wide range of nonlegal functions, and that not all of the documents that they handle should properly be privileged. See id. In addition, the Center points out that some withheld documents involved communications between non-lawyers, and thus should not qualify for the attorney-client privilege. See id. Defendants, for their part, challenge the Center's assertion of the privilege, claiming that the Center is using the privilege to shield documents that involve business transactions, and not legal disputes. See Letter from Shapiro to Wang of November 5, 2003, at 1.

  When asserting the attorney-client privilege, a party must show that there exists "1) a communication between client and counsel, which 2) was intended to be and was in fact kept confidential, and 3) made for the purpose of obtaining or providing legal advice." Robert Strougo v. BEA Assocs., et al., 199 F.R.D. 515, 519 (S.D.N.Y. 2001) (quoting United States v. Construction Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996)). The privilege's purpose is "to encourage full and frank communication between attorneys and their clients," thus promoting "broader public interests in the observance of law and administration of justice." Upjohn Co., et al. v. United States, et al., 449 U.S. 383, 389 (1981). Under the attorney-client privilege, it is the communication between the client and the attorney itself that is protected, not the underlying facts. See id., 449 U.S. at 395-96 (quoting Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962)). In addition, the privilege applies only to communications for legal, not business, advice. See In re Grand Jury Subpoena Duces Tecum Dated September 15, 1983, 731 F.2d 1032, 1037 (2d Cir. 1984).

  C. Work Product Protection

  Defendants have withheld several items on work product grounds dating from August 2002. See Letter from Shapiro to the Court of April 7, 2004 [erroneously dated "2003"], at 1-2. They claim August 2002 is the operative starting point because "defendants reasonably believed that litigation was a reasonable possibility" at that time. Id. In contrast, the Center claims that the work product doctrine did not come into play until December 10, 2002, when Defendants informed ...

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