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Schiller v. City of New York

August 6, 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 are two of the many cases that arise from the arrests of demonstrators during the Republican National Convention (the "RNC") in 2004. At issue here is a document request served upon the defendants on March 29, 2007 ("Request No. 97"). The defendants (hereinafter the "City") objected to production of the requested documents on a number of grounds, including overbreadth, lack of relevance, and the law enforcement privilege. The plaintiffs then moved to compel the defendants to produce the documents in question. In an order dated May 18, 2007, I held that Request No. 97 was not overly broad and was reasonably calculated to lead to the discovery of admissible evidence. Because the issue of the applicability of the law enforcement privilege had not yet been addressed by the parties, I did not order production of the documents at that time. That issue has now been fully briefed, and I have reviewed the disputed documents in camera.

For the reasons set forth below, the plaintiffs' motion to compel production of the documents is granted in part and denied in part. Portions of the documents sought by the plaintiffs are subject to the law enforcement privilege. However, the privileged material may be redacted in order to provide the plaintiffs with the information necessary to the litigation. I have provided the defendants with copies of the documents redacted in accordance with the principles discussed below, and they must be produced to the plaintiffs in that form.

Background

A. NYPD Intelligence Division Deputy Commissioner David Cohen heads the Intelligence Division of the New York City Police Department (the "NYPD"). Prior to the RNC, the Intelligence Division was responsible for collecting information regarding the nature of planned protest activity in order to assess possible threats to security. (Declaration of David Cohen dated May 2, 2007 ("Cohen 5/2/07 Decl."), ¶¶ 1, 6). Means used to gather such information included the utilization of confidential informants and the assignment of undercover officers*fn1 to monitor the activities and plans of organizations that the NYPD thought were likely to engage in unlawful activity at the RNC.*fn2

Commissioner Cohen analyzed the information gathered by his staff and then briefed the RNC Executive Committee on "potential disruptive behavior" at the RNC. (Cohen 5/2/07 Decl., ¶ 9; Letter of Gerald S. Smith dated Feb. 21, 2007 ("Smith 2/21/07 Letter"), attached as Exh. C to Declaration of Palyn Hung dated April 12, 2007 ("Hung 4/12/07 Decl."), at 2-3). Members of the Executive Committee, which included Police Commissioner Raymond Kelly, Chief of Department Joseph Esposito, and other high-ranking NYPD officials, were responsible for formulating the policies challenged by the plaintiffs in these cases. (Cohen 5/2/07 Decl., ¶ 9; Smith 2/21/07 Letter at 2-3, 5). Among these policies are (1) the NYPD's decision to fingerprint all arrestees and (2) the decision not to issue summonses but instead to require that all arrestees be

arraigned before being released. (Smith 2/21/07 Letter at 5). According to the defendants, these policies were based on intelligence information obtained in advance of the RNC and presented to the RNC Executive Committee by Commissioner Cohen. (Smith 2/21/07 Letter at 5).

B. Disputed Documents*fn3

On January 19, 2007, the City identified 600 pages of intelligence-related documents that had not previously been disclosed to the plaintiffs in the course of discovery.*fn4 The plaintiffs subsequently determined that those documents "were only part of Defendants' pre-RNC intelligence gathering." (Letter of Palyn Hung dated April 12, 2007 ("Hung 4/12/07 Letter") at 2). Accordingly, the plaintiffs served Request No. 97, which seeks:

All documents -- whether in the form of raw reports, summaries, or any other form -- containing information gathered, collected, or otherwise obtained by the NYPD's Intelligence Division between April 1, 2003 and September 2, 2004 about individuals, groups, or entities connected to demonstrations expected to take place in New York City in conjunction with the Republican National Convention.

This request includes but is not limited to DD5s, tape recordings, video recordings, photographs, computer files, e-mails, and web pages. (Plaintiff's Sixth Request for Documents, attached as Exh. I to Hung 4/12/07 Decl., at 4). As explained above, I previously determined that this request was not overly broad and was sufficiently likely to lead to the discovery of admissible information. Schiller, 2007 WL 1461378, at *2-3.

The City has asserted the law enforcement privilege with respect to three categories of documents responsive to Request No. 97. The first category consists of "field intelligence reports," also known as "DD5s", which are prepared by undercover police officers or their "handlers."*fn5 The City contends that these reports are protected by the privilege in their entirety. The second category includes 84 other documents that the City claims are privileged in their entirety. The third category consists of 177 documents that the City is willing to produce with certain redactions. (Cohen 6/6/07 Decl., ¶¶ 6-7).

Discussion

A. Law Enforcement ...


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