The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
Plaintiffs brought this action against the City of New York and individual defendants alleging false arrest, excessive detention, and other claims arising out of their arrests in February 2002 at the World Economic Forum. Recently, defendants moved for summary judgment. In their responsive papers, plaintiffs included documents that were made available to them pursuant to a confidentiality order. Plaintiffs now move to file their summary judgment papers publicly. For the reasons stated below, plaintiffs' motion is granted.
To understand the instant motion, some background is necessary, beginning with how the documents at issue became subject to a confidentiality order.
A. The November 2004 Motion
During the course of discovery in this case, plaintiffs sought certain documents from the City that the City had withheld based on various privileges. In a letter to the Court dated November 11, 2004, the plaintiffs challenged the City's assertion of privilege. See Order, dated Nov. 12, 2004 (Docket #67). Accordingly, the Court directed the City to move for a protective order with respect to the documents. Id. The City did so in November 2004. See Notice of Motion for a Protective Order, dated Nov. 22, 2004 (Docket #69) ("November 2004 Motion"). At the time it filed this motion, the City submitted the documents at issue to the Court for in camera review (hereinafter, the "In Camera Documents"). The In Camera Documents were labeled as Exhibits 1 through 14 -- numbers that were keyed to the City's privilege log. See November 2004 Motion, Exhibit A (annexing, inter alia, a hand-numbered privilege log).
At the time of the November 2004 Motion, the City asserted that all these documents were either not relevant and/or subject to the deliberative process and law enforcement privileges. The court heard oral argument on the City's motion on January 31, 2005. See Transcript, filed Feb. 15, 2005 (Docket #82) ("Tr."). In an oral decision, the Court sustained the assertions of privilege as to some documents and rejected it as to others. With respect to most of the documents at issue in the instant motion (specifically, Exhibits 5 through 10 of the In Camera Documents), the Court rejected the City's assertion of the deliberative process privilege on the ground that these items did not relate to "specific decision-making on a specific issue." (Tr. 35). The Court rejected the City's assertion of the law enforcement privilege as well. (Tr. 35-36) ("[C]ase law makes it a requirement that there be some kind of . . . substantial threshold showing of specific harms. . . . [T]hat showing has not been made, [so] I am going to require its production."). The Court's ruling rejecting the City's assertion of privileges was embodied in a summary order. See Order, dated Jan. 31, 2005 (Docket #79).*fn1
Immediately following the rulings with respect to Exhibits 5 through 10, the Court raised the issue of a protective order. The Court stated:
I am willing to have a protective order at least as an initial matter for counsel's eyes only, then to the extent that we need to go beyond that, I will put the city to the burden, if plaintiffs' counsel feels they need to use it for some purpose that's going to require showing it to others, consultants can see it obviously, but if it's needed for purposes to go beyond that, then we would have some mechanism, the city would be put to the burden on the law enforcement technique aspects of it, you can put that together specifically. (Tr. 36).
While this paragraph is no model of clarity, what the Court contemplated was that Exhibits 5 through 10 would be turned over to the plaintiffs under a protective order that would permit only plaintiffs' attorneys to view them. The Court assumed that the parties would stipulate to such an order and submit it to the Court for approval. Once plaintiffs viewed the materials, the Court contemplated that the plaintiffs would have the opportunity to make the case that the "attorney's eyes only" restriction imposed by the protective order should be reconsidered. Thus the Court assumed that if plaintiffs' counsel needed to use the documents for some purpose relating to the litigation that required showing the document to others, the plaintiffs would be given the opportunity to submit arguments why the materials should not be subject to the "attorney's eyes only" restriction or why the materials should not be subject to a protective order at all. At the same time, the Court contemplated that the City would still have the burden of showing the necessity for a protective order and that, as part of making this showing, it could advert to such matters as the need to protect law enforcement techniques --not
City has not argued on the instant motion that any documents other than what has been termed the "Graham Report" (Exhibit 5 of the In Camera Documents) are privileged, the Court will treat all the documents as if they had been the subject of a ruling denying claims of privilege. to reargue the privilege issue, since the claims of privilege had been denied, but merely as support for the need for a protective order.
The Court's assumption that a protective order would be agreed to by the parties and submitted to the Court was only partially realized. The parties apparently agreed on the text of such an order and the plaintiffs signed it. See Order of Confidentiality, filed Feb. 9, 2006 (Docket #123) ("Protective Order"). But the defendants' attorneys produced the materials to plaintiffs' attorneys without signing it themselves. See id. at 5.
The instant motion began its existence as a "Notice of Motion for an Order Striking the Graham Report from an Unexecuted, Unfiled Stipulation and Confidentiality Order," dated January 13, 2006, which plaintiffs filed under seal. The motion as originally filed raised two issues. First, plaintiffs sought to remove one of the documents produced to them -- the "Graham Report" -- from the scope of the Protective Order. Second, plaintiffs sought permission to file the Graham Report publicly on the ground that, because it was ...