United States District Court, S.D. New York
April 13, 2005.
NEXTG NETWORKS OF NY, INC., Plaintiff,
CITY OF NEW YORK; CITY OF NEW YORK DEPARTMENT OF INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS; and GINO P. MENCHINI, in his official capacity, Defendants.
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
MEMORANDUM AND ORDER
This case arises out of the refusal of the City of New York to
award a franchise for provision of wireless telecommunication
services to the plaintiff, NextG Networks of NY, Inc. ("NextG").
NextG now moves pursuant to Rule 37 of the Federal Rules of Civil
Procedure for an order compelling the defendants (referred to
collectively as the "City") to produce certain documents.
Originally, three categories of documents were at issue. However,
the parties have reached agreement with respect to the production
of two: documents relating to tax payments made by Verizon (a
competitor of NextG that was awarded a franchise) and documents
relating to the location and scope of Verizon's facilities. Thus,
only documents relating to the City's implementation of
Resolution No. 957, including requests for proposal and franchise
processes, remain at issue. NextG also requests sanctions,
including an award of attorneys' fees, in connection with this motion, and it seeks
reconsideration of my order holding that discovery has closed.
For the reasons set forth below, the plaintiff's motion to
compel is granted, its application for an award of fees is
denied, and its request to reopen discovery is denied except
insofar as further inquiry may be necessitated as a result of the
disclosure required by this Order.
In Plaintiff's First Request for Production of Documents, NextG
demanded production of
[a]ll documents referring to, relating to, or
reflecting any action taken by the City or DoITT [the
Department of Information Technology and
Telecommunications] pursuant to Resolution No. 957 of
1999 ("Resolution No. 957") of the City of New York,
including but not limited to documents referring to,
relating to, or reflecting any drafts of, proposals
for, or final adoptions of any RFP [request for
proposal] pursuant to Resolution No. 957 or any
drafts of franchises related to Resolution No. 957.
(Affidavit of T. Scott Thompson dated Jan. 6, 2005 ("Thompson
Aff."), Exh. 4 at 5). In response to this request, the City
Defendants object to this request on the grounds that
it is overbroad, vague, burdensome and seeks
materials neither relevant to the issues in this
action nor reasonably calculated to lead to the
discovery of admissible evidence. Subject to and
without waiving such objection, defendants are
producing the Request for Proposal ("RFP") issued by
DoITT on February 9, 2004 pursuant to Resolution No.
957 (Bate Stamp Nos. 1-36).
(Thompson Aff., Exh. 4 at 5-6). In addition, in its general
statement, the City stated: Defendants object to this Document Request to the
extent that it demands documents and/or information
which are protected by the attorney-client or
work-product privilege, or which constitute material
prepared for litigation purposes. Defendants also
object in the entirety to any request for documents
which is not limited in time.
(Thompson Aff., Exh. 4 at 1-2).
On April 28, 2004, NextG submitted a letter application seeking
to compel production of additional documents responsive to this
and other requests. The City responded on June 2, 2004, arguing
that the information sought was irrelevant and that the request
for documents relating to Resolution No. 957 ("Request No. 7")
was duplicative, but raising no claims of privilege. (Thompson
Aff., Exh. 1). Thereafter, I issued an order dated June 14, 2004,
that, in part, directed the City to respond to Request No. 7 by
producing "all drafts of Requests for Proposal ("RFP"), documents
concerning the drafting of such RFP's, drafts of franchises
related to Resolution No. 957, and internal correspondence
(including emails) concerning requests for access to public
rights-of-way that would be governed by Resolution No. 957."
(Order dated June 14, 2004, para. 2). The City appealed this
Order, again without raising any claims of privilege. (Thompson
Aff., Exh. 5). The Order was affirmed. (Decision and Order dated
Aug. 9, 2004).
In the June 14 Order, I also directed the City to submit
forthwith a privilege log. It ultimately did so on December 22,
2004, asserting claims of confidentiality, deliberative process privilege, attorney-client privilege, and work product protection
with respect to some 81 documents as well as three categories
incorporating an unidentified number of documents. (Thompson
Aff., Exh. 6). NextG then filed the instant motion, arguing that
the City has failed to comply with my June 14 Order in that it
continues to withhold responsive documents. According to NextG,
the City waived the privileges that it now asserts with respect
to those documents, and, in any event, the claims of privilege
have not been substantiated.
If a claim of privilege is not asserted at the time that a
party responds to a discovery request, the privilege is waived.
See Melendez v. Greiner, No. 01 Civ. 7888, 2003 WL 22434101,
at *2 (S.D.N.Y. Oct. 23, 2003); Bowne of New York City, Inc. v.
Ambase Corp., 150 F.R.D. 465, 489-90 (S.D.N.Y. 1993). A party
cannot simply hold in reserve its objections on grounds of
privilege "for later strategic use." Bank Brussels Lambert v.
Chase Manhattan Bank, N.A., No. 93 Civ. 5298, 1998 WL 567862, at
*2 (S.D.N.Y. Sept. 3, 1998). Indeed, the local civil rules in
this district require that a party withholding a document on the
basis of privilege provide complete identifying information,
date, type of document, and subject matter "at the time of the
response to . . . discovery[.]" Local Civil Rule 26.2(c). When it responded to NextG's document demands, the City plainly
failed to assert the privileges that it now seeks to raise. It
never mentioned confidentiality or deliberative process privilege
at all. It alluded to the attorney-client privilege and work
product doctrine only in the "General Statement" section of its
responses, and not in connection with any specific document or
even with respect to any particular request. Now the City argues
that in my June 14 Order I somehow acquiesced in the tardy
assertion of privilege by directing that a privilege log be
filed. (Memorandum of Law in Opposition to Plaintiff's Motion to
Compel at 16). That is not the case. The Order did not address
the waiver issue at all, and in any event it was incumbent on the
City to provide a privilege list for any document that it was
withholding, including those that were outside the subject matter
of the order. Accordingly, the privileges that the City belatedly
seeks to raise with respect to the documents that I directed be
produced in Request No. 7 have been waived.
Even if that were not the case, the City has failed to satisfy
its burden of demonstrating that any privilege attaches. The
attorney-client privilege provides that "(1) where legal advice
of any kind is sought (2) from a professional legal advisor in
his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his
instance permanently protected (7) from disclosure by himself or
by the legal advisor, (8) except the protection be waived." United
States v. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO, 119 F.3d 210, 214
(2d Cir. 1997) (citation and internal quotation marks omitted).
The burden of establishing the existence of each of the elements
of the privilege rests with the party asserting it. In re Grand
Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000); United
States v. Adlman, 68 F.3d 1495, 1500 (2d Cir. 1995). Here, the
City has based its privilege arguments exclusively on its belated
privilege log. It has submitted no affidavit explaining the
context in which any of the communications were made. Indeed, in
some instances neither the author nor the recipient of the
supposedly privileged document is identified except by name, and
it is consequently impossible to determine whether either is an
attorney. Even where a communication is identified as having
involved a lawyer, there is no evidence that it was created for
the purpose of providing or obtaining legal rather than business
advice, that it was intended to remain confidential, and that the
privilege has not been waived.
The City's assertion of the deliberative process privilege is
similarly deficient. In order for the privilege to attach, a
document must be both "predecisional" and "deliberative." See
National Congress for Puerto Rican Rights v. City of New York,
194 F.R.D. 88, 92 (S.D.N.Y. 2000). To demonstrate that a document
is predecisional, an agency must: (i) pinpoint the specific decision to which the
document correlates, (ii) establish that its author
prepared the document for the purpose of assisting
the agency official charged with making the agency
decision, and (iii) verify that the document
precedes, in temporal sequence, the decision to which
Id. (quoting Providence Journal Co. v. United States
Department of the Army, 981 F.2d 552, 557 (1st Cir. 1992)).
"Thus, the privilege protects `recommendations, draft documents,
proposals, suggestions, and other subjective documents which
reflect the personal opinions of the writer rather than the
policy of the agency.'" Id. (quoting Grand Central
Partnership, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999)).
It does not protect third-party documents submitted in connection
with an agency decision. See Kaufman v. City of New York, No.
98 Civ. 2648, 1999 WL 239698, at *4 (S.D.N.Y. April 22, 1999). As
with the attorney-client privilege, it is the burden of the party
raising the deliberative process privilege to demonstrate its
applicability. See Bath Petroleum Storage, Inc. v. Sovas,
309 F. Supp. 2d 357, 363 (N.D.N.Y. 2004); In re Grand Jury Subpoena
dated August 9, 2000, 218 F. Supp. 2d 544, 553 (S.D.N.Y. 2002).
Again, however, the City has not provided evidence showing that
these requirements have been met. For example, many of the
documents listed in the City's log as subject to this privilege
have only the scantest identifying information, and no affidavit
has been submitted that would remedy this shortcoming.
Accordingly, the City's claims of privilege are rejected, both
because they have been waived and because, even now, the City has failed to carry its burden of demonstrating the applicability of
the privileges asserted.
Where a party has disobeyed a discovery order, the court may
require "the party failing to obey the order or the attorney
advising that party or both to pay the reasonable expenses,
including attorney's fees, caused by the failure, unless the
court finds that the failure was substantially justified or that
other circumstances make an award of expenses unjust."
Fed.R.Civ.P. 37(b)(2). In this case, while it is a close question,
there was sufficient justification for the City's failure to
produce the requested documents until privilege issues had been
To be sure, the privileges have been waived with respect to the
documents at issue. But that waiver is the result of litigation
failures, not of a conscious decision to abandon the privileges,
and the City was entitled to a determination of whether a waiver
had actually occurred. And, while the City has been less than
diligent in meeting its discovery obligations in this case, it
has not engaged in the kinds of repeated discovery abuses or
manipulation of the discovery process that warrant sanctions.
See Selletti v. Carey, 173 F.3d 104, 110 (2d Cir. 1999).
Finally, the expenses incurred by NextG in connection with this
motion are equivalent to the costs that it would have expended in
any event if the City had litigated the privilege issues in a
timely fashion. Therefore, no sanctions will be awarded.
The parties now agree that discovery is concluded except with
respect to the documents related to plaintiff's Request No. 7.
(Plaintiff's Reply Memorandum of Law in Support of Motion to
Compel, for Sanctions, and for Reconsideration of Discovery
Schedule at 10). Since it is conceivable that the production of
those documents would necessitate follow-up discovery, it is
appropriate to extend that discovery deadline for a very limited
period and only for that purpose.
For the reasons set forth above, the City shall produce within
two weeks of the date of this Order all documents encompassed by
paragraph 2 of my Order of June 14, 2004. Within two weeks
thereafter, NextG shall advise the City and the Court of any
residual discovery it proposes to take in connection with the
documents produced. Otherwise, discovery is closed. NextG's
application for an award of sanctions in connection with this
motion is denied.
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