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Schiller v. City of New York

January 19, 2007

MICHAEL SCHILLER, ET AL., PLAINTIFFS,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.
HACER DINLER, ET AL., PLAINTIFFS,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

These cases concern the arrests of persons protesting in connection with the Republican National Convention (the "RNC") in 2004. The plaintiffs have moved to lift the confidentiality designations assigned to certain documents by the defendants pursuant to a protective order (the "Protective Order") previously entered in these and other related actions. The New York Times (the "Times"), which was previously granted permission to intervene, has also moved to remove those designations. In addition, the Times has moved to modify the Protective Order to require any party wishing to designate discovery materials as "Confidential" in the future to demonstrate good cause for doing so.

Background

In February 2005, the plaintiffs served their initial discovery requests on the City. (Letter of Christopher Dunn dated June 2, 2006 ("Dunn 6/2/06 Letter"), attached as Exh. 5 to Declaration of Christopher Dunn dated Nov. 10, 2006 ("Dunn Decl."), at 1). The City produced a number of responsive documents beginning in March 2005. (Dunn Decl., ¶ 2). At a pretrial conference held before the Honorable Kenneth M. Karas on April 21, 2005, the City expressed concern about production of a videotape made at Pier 57 because it depicted arrestees and therefore raised privacy concerns.*fn1 (Dunn 6/2/06 Letter at 1; Transcript of Conference before the Hon. Kenneth M. Karas dated April 21, 2005, at 8). The plaintiffs agreed that the videotape of Pier 57 should be kept confidential, and the parties agreed to negotiate a protective order. (Dunn 6/2/06 Letter at 1). Since a bevy of additional RNC actions were filed after the instant cases, and because discovery was consolidated, it was agreed that the order would apply to all RNC cases. (Dunn 6/2/06 Letter at 1). While the terms of the order were being negotiated, the City produced more materials responsive to the plaintiffs' discovery requests.

(Dunn Decl., ¶ 2).

On October 4, 2005, the Court approved the parties' stipulation concerning confidentiality, entitled "Protective Order #1." The Protective Order deals specifically with the protocol for maintaining the confidentiality of the Pier 57 videotape. The Protective Order also provides that any party may designate other discovery materials as "Confidential" and subject to its terms. (Protective Order #1, ¶ 5). Any material deemed "Confidential" cannot be used "for any purpose other than to prosecute" the RNC cases, and, if filed with the Court, must be filed under seal. (Protective Order #1, ¶¶ 1-3). Finally, the Protective Order states that "[i]n the event that either party disagrees with the designation of particular material as 'Confidential,' such party shall attempt in good faith to resolve the disagreement with the opposing counsel and, if the parties cannot resolve the matter, they may raise it with the Court." (Protective Order #1, ¶ 6).

On November 4, 2005, James Mirro, an attorney for the City, sent an email to all plaintiffs' counsel in the consolidated RNC cases stating:

Please be advised that, pursuant to paragraph 5 of the Court's October 4, 3005 Protective Order #1, Defendants hereby designate as Confidential all materials (including but not limited to paper documents and videotapes) that they have previously produced in the Schiller case and in the related RNC cases. (E-mail of James Mirro dated Nov. 4, 2005, attached as Exh. 3 to Dunn Decl.). On November 10, 2005, the plaintiffs wrote to Mr. Mirro to ask the City to withdraw its blanket confidentiality designation. (Letter of Christopher Dunn and Palyn Hung dated Nov. 10, 2005, attached as Exh. 4 to Dunn Decl.). After some negotiation, the City withdrew its confidentiality designations from a limited number of documents. (Letter of James Mirro dated Jan. 11, 2006, attached as Exh. C to Mirro 7/7/06 Letter).

The plaintiffs again protested the City's blanket confidentiality designations, arguing that "[w]hile the October 2005 protective order does allow the City to designate documents as being confidential, any such designation plainly should be limited to documents the City has reviewed and determined to contain genuinely confidential information." (Letter of Christopher Dunn dated June 2, 2006, attached as Exh. 5 to Dunn Decl., at 2). The plaintiffs nonetheless agreed to provide the City with a list of specific materials they believed to have been improperly designated as confidential. Upon receiving this list, the City agreed to remove the designations from a number of the documents identified by the plaintiffs. The City also stated that, at the direction of the Court, it would "move for a protective order to maintain the confidentiality" of the remaining materials. (Letter of Peter G. Farrell dated June 19, 2006, attached as Exh. 7 to Dunn Decl., at 2).

The City made its motion in a letter brief dated July 7, 2006 (the "Protective Order Brief"). The Protective Order Brief and supporting declarations were initially filed under seal. The plaintiffs objected to the sealing of the Protective Order Brief. The Times made a motion to intervene for the purpose of challenging the City's confidentiality designations and also objected to the sealing of the Protective Order Brief. I granted the Times' motion to intervene and found that the Protective Order Brief was a judicial document subject to a presumption of public access. I further ordered the City to file publicly copies of the Protective Order Brief and its accompanying declarations from which excerpts from documents deemed confidential had been redacted. Schiller v. City of New York, No. 04 Civ. 7922, 2006 WL 2788256 (S.D.N.Y. Sept. 27, 2006).

The underlying dispute regarding the City's confidentiality designations has now been fully briefed by the parties and the Times.

Discussion

A. Withdrawal of Confidentiality Designations

1. Legal Standard

Rule 26(c) of the Federal Rules of Civil Procedure permits a district court to "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense" upon a showing of good cause. It is well established that "'[t]the party seeking a protective order [under Rule 26(c)] has the burden of showing that good cause exists for issuance of that order.'" Gambale v. Deutsche Bank AG, 377 F.3d 133, 142 (2d Cir. 2004) (quoting In re "Agent Orange" Product Liability Litigation, 821 F.2d 139, 145 (2d Cir. 1987)); see also Condit v. Dunne, 225 F.R.D. 113, 115 (S.D.N.Y. 2004); In Re Application of the Akron Beacon Journal, No. 94 Civ. 1402, 1995 WL 234710, at *10 (S.D.N.Y. April 20, 1995). In the absence of such a protective order, "parties to a law suit may disseminate materials obtained during discovery as they see fit."*fn2 Jepson, Inc. v. Makita Electric Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994); see also San Jose Mercury News v. U.S. District Court ---Northern District (San Jose), 187 F.3d 1096, 1103 (9th Cir. 1999); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 789 (1st Cir. 1988); Agent Orange, 821 F.2d at 145-46.

The plaintiffs have challenged the City's designation of certain discovery materials as "Confidential." Contrary to the City's assertion, the plaintiffs do not seek to modify the Protective Order or ask this Court to find that the Protective Order is unenforceable. Rather, the plaintiffs have exercised a right reserved to them under the terms of the Protective Order, which allows a party that "disagrees with the designation of particular materials as 'Confidential'" to raise the matter with the Court if the parties cannot resolve the disagreement. (Protective Order #1, ¶ 6).

The City contends that the heightened standard set forth by the Second Circuit in Martindell v. International Telephone and Telegraph Corp., 594 F.2d 291 (2d Cir. 1979), is applicable here. That standard requires a party seeking modification of a protective order to show "improvidence in the grant of [the] order or some extraordinary circumstance or compelling need" where there has been reasonable reliance on the order. Id. at 296; see also AT&T Corp. v. Sprint Corp., 407 F.3d 560, 562 (2d Cir. 2005); Gambale, 377 F.3d at 142 n.7; TheStreet.com, 273 F.3d at 229. The City contends that once a protective order is signed by a court, withdrawal of confidentiality designations should be subject to Martindell's heightened standard, regardless of the terms of the order. This argument is without merit. Where a protective order permits the parties to designate discovery materials as "Confidential" without a showing of good cause, and one party challenges a designation made by another, the challenging party is not seeking to modify the protective order and therefore does not bear the burden of demonstrating that the confidentiality designations should be lifted.

To support its position, the City relies on Geller v. Branic International Realty Corp., 212 F.3d 734 (2d Cir. 2000), Ionosphere Clubs, Inc. v. American National Bank and Trust Co. of Chicago, 156 B.R. 414 (S.D.N.Y. 1993), and Diversified Group, Inc. v. Daugerdas, 217 F.R.D. 152 (S.D.N.Y. 2003). Geller is clearly inapposite because it involved modification of a protective order, rather than an application of the order's terms. As part of a settlement agreement, the parties had agreed that a specific set of documents --- in that case, the entire case file --- should be sealed. The district court "so ordered" the settlement agreement but did not seal the file. When the defendants learned of this, they wrote to the court asking that the file be sealed. The court refused to do so unless the defendants showed good cause. On appeal, the Second Circuit, citing Martindell, found that after a district court has approved a settlement agreement that includes a sealing order, that order may be modified only upon a showing that is "more substantial than the good cause needed to obtain a sealing order in the first instance." Geller, 212 F.3d at 738. Here, the plaintiffs do not seek to alter the existing Protective Order, only to exercise the challenge provision contained in it.

Ionosphere Clubs also involved modification of a protective order. That order required the sealing of all materials used by a Bankruptcy Examiner in making his report. In considering a motion to unseal those documents, the court applied the Martindell standard, noting that although the protective order stated "that the confidentiality afforded the discovery materials could be 'subsequently revoked, vacated, or modified,' this simple phrase does not mean . . . that all parties contemplated the unsealing of the record." Ionosphere Clubs, 156 B.R. at 434. Rather, the provision merely recognized the fact that a court may, under certain circumstances, modify a protective order after it has been entered. Id. In this case, by contrast, the terms of the Order make it clear that all parties contemplated that "relief from the provisions of the order [could] be sought at any time," Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006). Therefore, such relief does not constitute modification of the Protective Order.

The only case that could plausibly support the City's argument that the Martindell standard should apply here is Diversified Group. However, it is not clear from that opinion whether the protective order at issue applied only to specific documents, or whether it permitted the parties to designate any documents they wished as "Confidential." The court noted that the order had been entered "[u]pon a finding of good cause," and allowed "any party or interested member of the public" to challenge the sealing of documents. Diversified Group, 217 F.R.D. at 156. The court also stated, in dicta, that with regard to non-judicial documents, "the Martindell presumption against access would apply" to any such challenge. Id. at 163.

Nevertheless, Diversified Group does not provide sufficient support for the City's position. In cases involving protective orders like the one at issue here, courts have generally examined de novo whether the designating party has shown good cause pursuant to Rule 26(c). See, e.g., Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986) (where protective order covers all documents that producing party deems confidential, "burden of justifying the confidentiality of each and every document . . . remains on [that party]; any other conclusion would turn Rule 26(c) on its head"); Allen v. City of New York, 420 F. Supp. 2d 295, 301 (S.D.N.Y. 2006); Fournier v. McCann Erickson, 242 F. Supp. 2d 318, 342 (S.D.N.Y. 2003) (noting that "heightened 'extraordinary circumstances' burden for unsealing documents [] contemplates the court having already considered each document in the first instance according to a 'good cause' standard"); Akron Beacon Journal, 1995 WL 234710, at *12 (protective order "improperly shifted the burden" by requiring challenging party to show "particularized need" for material designated as confidential, where designating party had never been required to show good cause). This approach makes sense, because in cases involving protective orders like the one at issue here, adoption of the City's theory would permit "each party [to] circumvent the 'good cause' standard for protection and, simultaneously, shift the burden to his adversary to unseal a document while benefitting from the more rigorous 'extraordinary circumstances' standard that would apply merely by unilaterally designating any given document as protected." Fournier, 242 F. Supp. 2d at 342.

Nor do I accept the City's argument that Martindell should apply because the City reasonably relied upon the Protective Order when it produced the materials at issue here. It is well-established that "protective orders that are on their face temporary or limited may not justify reliance by the parties. Indeed, in such circumstances reliance may be unreasonable." Gambale, 377 F.3d at 142 n.7 (quoting TheStreet.com, 273 F.3d at 230-31). In this case, the Protective Order not only asked the Court to defer to the parties' judgment on confidentiality but it also allowed for unilateral designation of [a document] as protected material, and it did not list specific documents, or delineate the kinds of documents, contemplated for protection. Defendants were never required to show good cause for sealing the various documents.

Fournier, 242 F. Supp. 2d at 341. Reliance upon the protection of such an order when producing discovery materials or witnesses for deposition is unreasonable.*fn3 See Lugosch, 435 F.3d at 126 (stating that it is "difficult to see" how party could reasonably rely on confidentiality order stating that it "shall not prevent anyone from applying to the Court for relief therefrom"); Allen, 420 F. Supp. 2d at 300-01 (reliance unreasonable where protective order permitted plaintiffs to challenge defendants' confidentiality designations, and where such challenge triggered obligation on the part of defendants to show good cause); Akron Beacon Journal, 1995 WL 234710, at *15 (production of documents not made in reliance on protective order where order preserved right of parties to challenge confidentiality designations); cf. Liggett Group, 858 F.2d at 790 (protective order "extending broad protection to all documents . . . without a showing of good cause for confidentiality as to any individual documents" was "by nature overinclusive and [], therefore, peculiarly subject to later modification").

Accordingly, the City bears the burden of demonstrating good cause for designating each of the documents at issue as "Confidential."*fn4

2. Good Cause

"Ordinarily, good cause [for a protective order] exists 'when a party shows that disclosure will result in a clearly defined, specific and serious injury.'" In Re Terrorist Attacks, 454 F. Supp. 2d at 222 (citing Shingara v. Skiles, 420 F.3d 301, 306 (3d Cir. 2005)). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test. Moreover, the harm must be significant, not a mere trifle." Cipollone, 785 F.2d at 1121 (internal citations omitted); see also Allen, 420 F. Supp. 2d at 302 (finding that "generalized and unsupported claims of harm that might result from disclosure" do not constitute good cause).

The City asserts that many of the materials at issue here are subject to various privileges, most notably the law enforcement privilege and the deliberative process privilege. However, the City has waived any claim of privilege with respect to material previously disclosed to the plaintiffs. "If a party voluntarily discloses a privileged document, it waives the privilege for that document and cannot later seek to keep the document confidential." United States v. Gangi, 1 F. Supp. 2d 256, 263 (S.D.N.Y. 1998); see also In re Omnicon Group, Inc. Securities Litigation, 233 F.R.D. 400, 413 (S.D.N.Y. 2006); Large v. Our Lady of Mercy Medical Center, No. 94 Civ. 5986, 1998 WL 65995, at *4 (S.D.N.Y. Feb. 17, 1998) (privilege must be asserted at time of production). The City appears to concede that it has waived these privileges, but contends that "there is very considerable information in [the disputed] documents over which [the] defendants could have asserted various privilege"*fn5 and that the information remains "sensitive and confidential." (Mirro 12/8/06 Letter at 10). However, as is explained in more detail below, even if there had been no waiver, the City has failed to demonstrate that the documents in question would be privileged.

The City also argues that the Court should find good cause for the continued confidentiality of the disputed documents because New York's Code of Professional Responsibility prohibits the plaintiffs' counsel, the New York Civil Liberties Union ("NYCLU"), from engaging in pretrial publicity. Specifically, the City claims that release of the documents at issue here would violate Disciplinary Rule 7-107, which prohibits any extra-judicial statement "that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding." The problem with the City's argument is that removing these documents from the scope of the Protective Order does not necessarily mean that they will be released to the public. The NYCLU must first determine whether disclosure of the documents would be consistent with its ethical obligations. Of course, the City might be able to establish good cause for a protective order by demonstrating that public disclosure would be substantially likely to prejudice the trial of these or other RNC-related cases. However, the City has made no attempt to show that any such prejudice would result from disclosure of the documents.

Finally, the City claims that a number of the disputed documents "contain information that is sufficiently unreliable ---or subject to misinterpretation -- that it should not be disseminated beyond this litigation." (Mirro 7/7/06 Letter at 10). These assertions are, for the most part, entirely conclusory. The City has not explained what makes the documents unreliable, aside from the fact that they may contain incomplete information. The mere fact that a given document does not provide the reader with a full picture does not make it unreliable. Additionally, the City gives the general public very little credit when it contends that readers will be unable to grasp that the information contained in these documents might be incomplete or inaccurate.

Furthermore, the City has not demonstrated that any confusion that results will be so serious and damaging to the defendants as to justify a protective order. As the City itself points out, when a party expresses concern that materials may be misleading, "'[a] court may consider whether the nature of the materials is such that there is a fair opportunity for the subject to respond.'" (Mirro 7/7/06 Letter at 10 (quoting Amodeo, 71 F.3d at 1051)). The defendants can remedy any confusion that results from disclosure of these documents by providing public clarification regarding the information contained in them.

In another case involving mass arrests at political demonstrations, a court has noted "the patent inadequacy of the type of formulaic incantations of harm" put forward by the City in support of its assertion of various privileges. Kunstler v. City of New York, Nos. 04 Civ. 1145, 04 Civ. 665, 04 Civ. 2611, 2006 WL 1084375, at *2 (S.D.N.Y. April 24, 2006); see also Haus v. City of New York, No. 03 Civ. 4915, 2004 WL 3019762, at *3-4 (S.D.N.Y. Dec. 29, 2004) ("This formulaic assertion, taken almost word-for-word from innumerable other such agency submissions, plainly fails to offer a persuasive basis for believing that production under the governing confidentiality order would pose any harm to the public interest."). Unfortunately, almost all of the City's claims regarding the harm that will occur if the documents at issue here are released to the public are similarly inadequate. Nevertheless, I will address each of these claims in turn.

a. Videotapes

The plaintiffs seek to remove the City's confidentiality designation from 27 videotapes. The videotapes were made on August 31, 2004, and contain footage from two locations: the intersection of Church Street and Fulton Street in lower Manhattan, and 16th Street between Union Square East and Irving Place. (Mirro 7/7/06 Letter at 11). "The videos were taken by NYPD officers shortly before, during and after the arrests of several hundred individuals at those two locations." (Mirro 7/7/06 Letter at 11).

The City contends that the videotapes should remain confidential because they show individuals being arrested, and therefore "contain information that many of the individuals depicted . . . would regard as highly personal and private in nature." (Mirro 7/7/06 Letter at 11). This argument lacks merit because the demonstrations and arrests depicted on the videotapes took place in ...


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