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MacNamara v. City of New York

November 13, 2006

DEIRDRE MACNAMARA, DEEPA MAJMUDAR, ELIZABETH FLEISCHMAN, REBECCA STONEBACK, JASON BARRUS, CHRIS KORNICKE, RANDALL STEKETTE, WENDY STEFANELLI, DANIELLE WALSH, WILLIAM HOBBS, JULIA COHEN, SIMON HARAK, SONIA CHANDRA, CELINE MELANUM, ERIKA BIDDLE, DIANA RAIMONDI, RACHEL HEINOLD, NOAH CHARNEY, STACY COTLER, BARBARA AND LEONARD FRIEDMAN, AS PARENTS AND NATURAL GUARDIANS OF EMILY FRIEDMAN, A MINOR, ALI GHAHREMANI, AS PARENT AND NATURAL GUARDIAN OF SHAHRZAD GHAHREMANI, WILLIAM STEYERT, JR., CHRISTOPHER THOMAS, KATE ESPOSITO, INDIVIDUALLY, AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
THE CITY OF NEW YORK, A MUNICIPAL ENTITY; MICHAEL BLOOMBERG, MAYOR OF THE CITY OF NEW YORK; RAYMOND KELLY, NEW YORK CITY POLICE COMMISSIONER; JOSEPH ESPOSITO, CHIEF OF DEPARTMENT, NEW YORK CITY POLICE DEPARTMENT; THOMAS GRAHAM, COMMANDER, DISORDERS CONTROL UNIT, : NEW YORK CITY POLICE DEPARTMENT; BRUCE SMOLKA, ASSISTANT CHIEF, PATROL BOROUGH MANHATTAN SOUTH; TERRENCE MONAHAN, DEPUTY CHIEF, PATROL BOROUGH BRONX; JOHN J. COLGAN, DEPUTY CHIEF AND COMMANDING OFFICER, PIER 57; NEW YORK POLICE SUPERVISOR MICHAEL INGRAM; NEW YORK POLICE SUPERVISOR ROMAN; NEW YORK CITY POLICE OFFICERS MONA PHILLIPS, NELSON RODRIGUEZ, SHIELD NO. 21015, MICHAEL FILOSETA, KEVIN SAM, STEVEN CHOINSKI, TYRONE RIGGAN, DAN MALLOY, BOYLE, DIEZ, SHIELD NO. 4285, MICHAEL BALICKI, ANTHONY MASON, BAITY AND MELISSA ROMAN; NEW YORK CITY POLICE SUPERVISORS AND COMMANDERS RICHARD ROES 1-50; NEW YORK CITY POLICE OFFICERS JOHN DOES 1-50, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, JOINTLY AND SEVERALLY, DEFENDANTS.



The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge

MEMORANDUM AND ORDER

This case is one of many arising from the arrests of approximately 1,800 people during the Republican National Convention ("RNC") in New York City in the summer of 2004. The plaintiffs have sued individually and as representatives of a class of individuals who were arrested during the RNC, alleging, among other things, that they were arrested without probable cause pursuant to a policy of pre-emptive mass arrests, subjected to excessive force, detained in substandard conditions, and subjected to unnecessarily complex and time-consuming post-arrest processing.

In June 2006, plaintiffs' counsel in the numerous RNC-related lawsuits made a consolidated request to the City of New York ("the City") for production of documents for all RNC arrestees, regardless of whether they are parties to these lawsuits. The City has produced or agreed to produce a number of these documents but objects to many of the plaintiffs' requests. The City also contends that New York Criminal Procedure Law ("CPL") § 160.50 prohibits the release of the names and arrest numbers of the approximately 1,200 non-party arrestees and has therefore redacted them from all documents produced thus far.

The plaintiffs now seek an order unsealing the names and arrest numbers of non-party arrestees and compelling the City to produce various categories of arrest-related documents for all 1,800 arrestees. The plaintiffs also seek an order pursuant to Rule 45(c)(2)(B) of the Federal Rules of Civil Procedure compelling the New York County District Attorney's Office ("DANY"), which is not a party to this action, to produce certain documents pursuant to a subpoena delivered on May 31, 2006.

Background

A. Plaintiffs' Discovery Requests

In response to the plaintiffs' June 2006 consolidated request, the City produced a number of police logs, having redacted identifying information regarding non-party arrestees. The City contends that CPL § 160.50 prohibits it from producing unredacted copies of these documents in the absence of a court order or authorization from the non-party arrestees themselves.*fn1 (Letter of Gerald S. Smith dated July 27, 2006 ("Smith 7/27/06 Letter"), attached as Exh. C to Letter of Jonathan C. Moore and Clare Norins dated Aug. 18, 2006 ("Moore and Norins 8/18/06 Letter"), at 2).

In addition to the logs, the plaintiffs also sought an additional 42 categories of documents for all party and non-party RNC arrestees. (Letter of Jonathan C. Moore and Clare Norins dated June 27, 2006 and E-mail of Jeffrey A. Rothman dated June 29, 2006, attached as Exh. B to Moore and Norins 8/18/06 Letter). The City agreed to produce several categories of printouts from the Booking/Arraignment/Disposition Inquiry System ("BADS") as well as the PASS Data Intake Sheets*fn2 (collectively, "the BADS/PASS documents") for all arrestees, but with identifying information regarding non-party arrestees redacted. (Smith 7/27/06 Letter at 1). The City also stated that it had produced or would produce a number of the other requested documents for party arrestees but that it would not produce these additional documents for non-party arrestees because "they contain information that is duplicative of the information contained in the documents . . . which Defendants have already agreed to produce." (Smith 7/27/06 Letter at 2). With regard to the remainder of the plaintiffs' requests, the City objected to production for party and non-party arrestees alike. (Defendants' Response to Plaintiffs' Consolidated Request for the Production of Documents ("Def. Resp."), attached as Exh. C to Moore and Norins 8/18/06 Letter).

B. DANY Subpoena

On May 31, 2006, the plaintiffs delivered a subpoena on DANY seeking "[a]ll documents pertaining to individuals who were criminally charged and/or prosecuted by [DANY] in connection with" the RNC. (Subpoena, attached as Exh. A to Letter of Patricia J. Bailey dated Sept. 20, 2006 ("Bailey 9/20/06 Letter")). The plaintiffs subsequently provided DANY with the specific arrest dates and locations for which it was seeking documents. (Letter of Clare Norins dated June 6, 2006, attached as Exh. B to Bailey 9/20/06 Letter). On August 9, 2006, DANY objected to the subpoena on the grounds that it was overbroad and unduly burdensome, sought information not relevant to the plaintiffs' claims, and requested documents that had been sealed pursuant to CPL § 160.50. DANY also noted that since the plaintiffs could not provide the names of non-party arrestees, DANY was unable to locate any documents relating to them. (Letter of Patricia J. Bailey dated Aug. 9, 2006 ("Bailey 8/9/06 Letter"), attached as Exh. C to Bailey 9/20/06 Letter).

The plaintiffs have now narrowed the scope of the subpoena to include only certain types of documents for each RNC arrestee. These include four types of documents that the City has stated it is unable to produce, but which the plaintiffs believe may be contained in DANY's files,*fn3 and two types of documents allegedly created and maintained by DANY.*fn4 (Letter of Clare Norins dated Sept. 28, 2006 ("Norins 9/28/06 Letter"), attached as Exh. D to Letter of Jonathan C. Moore and Clare Norins dated Oct. 10, 2006 ("Moore and Norins 10/10/06 Letter"), at 2). DANY maintains that the subpoena remains unduly burdensome. (Letter of Patricia J. Bailey dated Oct. 4, 2006 ("Bailey 10/4/06 Letter"), attached as Exh. E to Moore and Norins 10/10/06 Letter). As a result, the plaintiffs seek an order pursuant to Rule 45(c)(2)(B) compelling DANY to produce the requested documents, and DANY has filed a motion to quash the subpoena in its entirety.

Discussion

A. Motion to Unseal Names of Non-Party Arrestees

DANY and the City take the position that they cannot release information sealed by the state criminal courts pursuant to CPL § § 160.50. Accordingly, the plaintiffs have brought a motion to unseal the arrest records of non-party RNC arrestees.

In its opposition to the plaintiffs' motion, the City "appear[s] to imply that [this Court] should simply apply the statutory sealing provisions wholesale to bar [the] plaintiffs' [discovery] requests." Haus v. City of New York, No. 03 Civ. 4915, 2006 WL 1148680, at *2 (S.D.N.Y. April 24, 2006). However, automatic application of a state law privilege in a federal question case is inappropriate. "As an initial matter, it should be emphasized that New York State law does not govern discoverability and confidentiality in federal civil rights actions." Cruz v. Kennedy, No. 97 Civ. 4001, 1997 WL 839483, at *1 (S.D.N.Y. Dec. 19, 1997) (citing King v. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988)); accord Woodard v. City of New York, No. 99 Civ. 1123, 2000 WL 516890, at *3 (S.D.N.Y. March 10, 2000); Daniels v. City of New York, No. 99 Civ. 1695, 2001 WL 228091, at *1 (S.D.N.Y. March 8, 2001) (questions of privilege in federal question cases are governed by federal common law). Rather, the privilege created by CPL § 160.50 "must be construed narrowly, and 'must yield when outweighed by a federal interest in presenting relevant information to a trier of fact.'" Daniels, 2001 WL 228091, at *1 (quoting United States v. One Parcel of Property at 31-33 York Street, 930 F.2d 139, 141 (2d Cir. 1991)).

Certainly, CPL § 160.50 protects "important privacy interests, and 'a strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy.'" King, 121 F.R.D. at 187 (quoting Lora v. Board of Education, 74 F.R.D. 565, 576 (E.D.N.Y. 1977)). However, state privilege rules should not be permitted to "frustrate the important federal interests in broad discovery and truth-seeking and the interest in vindicating important federal substantive policy such as that embodied in section 1983." King, 121 F.R.D. at 187. This Court must therefore "balance the deference to be accorded [the privilege created by CPL § 160.50] with the need for the information sought to be protected by the privilege." Daniels, 2001 WL 228091, at *1.

The court addressed a similar problem in Haus v. City of New York, a case arising from arrests at a demonstration against the impending war in Iraq on February 15, 2003. The plaintiffs in Haus asserted claims similar to those advanced here, and they requested that the City produce arrest documents for approximately 300 party and non-party arrestees. The Court pointed out that the "overriding aim" of the sealing requirement of CPL § 160.50 is "to ensure confidentiality for people who are arrested and thereby to avoid attaching any public stigma to them," and found that this goal could be achieved by the redaction of identifying information regarding non-party arrestees. Haus, 2006 WL 1148680, at *2 (citing Harper v. Angiolillo, 89 N.Y.2d 761, 766, 658 N.Y.S.2d 229, 232 (1997)). The court noted, however, that "the federal courts, when addressing demands for production of . . . arrest documents, have commonly rejected confidentiality arguments premised on [CPL § 160.50] even without redaction." Haus, 2006 WL 1148680, at *3 (citing cases).

The plaintiffs in this case contend that they need the names of non-party arrestees in order to assemble the arrest documents into a "time line" of each person's time in custody. This time line would assist them in substantiating their claim that the defendants implemented a needlessly complex and time-consuming arrest processing procedure during the RNC. (Letter of Jonathan C. Moore and Clare Norins dated Sept. 27, 2006 ("Moore and Norins 9/27/06 Letter") at 3). The plaintiffs have submitted examples of redacted arrest documents that support their claim that without the names and arrest numbers of the non-party arrestees, the documents "become merely a collection of disjointed, largely meaningless fragments of information."*fn5 (Moore and Norins 9/27/06 Letter at 4; Excerpts from Photo Intake Log, Telephone Call Logs, RNC DAT Release Log, and Court Detention Pen Record, attached as Exh. 7 to Moore and Norins 9/27/06 Letter). Furthermore, the plaintiffs point out that third parties, including DANY, cannot comply with the plaintiffs' subpoenas unless the plaintiffs can supply them with the names of non-party arrestees.*fn6 (Moore and Norins 8/18/06 Letter at 3; Bailey 9/20/06 Letter at 2; Letter of Shawn Kerby on behalf of the New York State Office of Court Administration ("OCA") dated June 23, 2006, attached as Exh. F to Moore and Norins 8/18/06 Letter, at 2 n.1).

The City cites Bryant v. City of New York, No. 99 Civ. 11237, 2000 WL 1877082 (S.D.N.Y. Dec. 27, 2000), and Fountain v. City of New York, No. 03 Civ. 4526, 2004 WL 1474695 (S.D.N.Y. June 30, 2004), in support of its argument that it should not be required to produce the names and arrest numbers of non-party arrestees. These cases are inapposite. In Bryant and Fountain, the plaintiffs sought the names of non-party arrestees in order to contact them about joining the action as plaintiffs or participating as witnesses. Bryant, 2000 WL 1877082, at *2-3; Fountain, 2004 WL 1474695, at *2. The court in Bryant expressed concern that permitting the plaintiffs' attorneys to contact non-party arrestees would burden the privacy rights created by CPL § 160.50. See Bryant, 2000 WL 1877082, at *2 (noting that "many of the arrestees might be upset [if contacted by the plaintiffs' lawyers], particularly if this information were to come to the attention of their family, friends, employers or co-workers").

In this case, however, the plaintiffs do not seek to contact non-party arrestees.*fn7 (Moore and Norins 9/27/06 Letter at 4; Letter of Jonathan C. Moore and Clare Norins dated Oct. 31, 2006 ("Moore and Norins 10/31/06 Letter") at 10). Rather, the plaintiffs need to know the names of non-party arrestees in order to decipher documents relevant to "both the appropriateness of class certification and the merits of [their] assertions that they were targeted for baseless arrests." Haus, 2006 WL 1148680, at *2. Therefore, unlike in Bryant and Fountain, the privilege created by CPL § 160.50 must yield to "the federal interest in presenting relevant information to a trier of fact."*fn8

As the plaintiffs point out, the burden on the legitimate privacy interests of the non-party RNC arrestees can be minimized by an "attorneys'-eyes-only" designation. Accordingly, the plaintiffs' motion is granted, and the City is ordered to produce unredacted versions of the BADS/PASS documents and police logs that it has already produced or agreed to produce. These documents shall be designated as "attorneys'-eyes-only."*fn9 Names, arrest numbers, and other identifying information need not be redacted from any documents produced pursuant to this Order.

The plaintiffs also seek an order requiring the City to generate and produce a list of the names and arrest numbers of all RNC arrestees, which the plaintiffs would then provide to counsel for third parties to assist them in complying with the plaintiffs' subpoenas. (Moore and Norins 8/18/06 Letter at 6). The City is under no obligation to create such a list for the plaintiffs' use, see Washington v. Garrett, 10 F.3d 1421, 1437 (9th Cir. 1993); Universal Acupuncture Pain Services, P.C. v. State Farm Mutual Automobile Insurance Co., No. 01 Civ. 7677, 2002 WL 31309232, at *4 (S.D.N.Y. Oct. 15, 2002); however, if such a list already exists, the City is required to produce it.

B. Motion to Compel Production by Defendants

The plaintiffs have moved to compel production by the City of various different categories of arrest-related documents. To the extent that the City objects to producing a particular type of document based on CPL § 160.50, that objection is overruled for the reasons discussed above. However, the City asserts a number of other objections, which are addressed below.

1. Online Booking System ("OLBS") Arrest Worksheets

The OLBS Worksheets contain handwritten information regarding the arresting or assigned officer's recollection of the events that preceded the arrest. The information on the Worksheet is subsequently entered into the OLBS, often by someone other than the officer who filled out the worksheet. (Moore and Norins 8/18/06 Letter at 7). The City has produced OLBS Worksheets for named plaintiffs, but has refused to produce them for non-party arrestees.

The City contends that the plaintiffs' request for OLBS Worksheets for non-party arrestees is duplicative, since the information sought "can be found in the BADS documents which Defendants have already agreed to produce" for non-party arrestees. (Smith 9/15/06 Letter at 6). The plaintiffs contend that "significant errors, edits and omissions" occur at the data entry stage, and that the information contained in the handwritten worksheets may therefore differ from that in the BADS computer printouts, which contain only the information actually entered into the OLBS. (Moore and Norins 9/27/06 Letter at 7). The example cited by the plaintiffs (OLBS Worksheet, attached as Exh. J to Moore and Norins 8/18/06 Letter) supports this contention: there the officer's narrative of the events providing probable cause to arrest differs significantly from the narrative contained in the BADS printout. Accordingly, the City is ordered to produce OLBS Worksheets for non-party arrestees as well as named plaintiffs, subject to the "attorneys'-eyes-only" designation described above.*fn10

2. Officer Activity Logs ("Memo Books")

The City has already produced memo book entries for defendant officers. However, the plaintiffs seek production of memo book entries from all of the approximately 360 arresting officers, in addition to the officers responsible for processing arrestees at the PASS and MAPC locations. The City objects on the grounds that the plaintiffs' request is overbroad and unduly burdensome because the procedure for obtaining memo book entries from officers ...


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