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Mitchell v. Fishbein

September 13, 2007


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Currently before the Court are the following motions: (1) defendants' motion for an order allowing in camera submissions of affidavits or interrogatories from certain non-parties (Docket #133); (2) plaintiff's related motion to depose those non-parties or in the alternative to preclude the use of their testimony (Docket #160); (3) plaintiff's motion to preclude the testimony of Gerald Lebovits and the introduction of certain documents prepared by him (Docket #157); and (4) defendants' motion seeking various forms of relief relating to Mitchell's witnesses (Docket #132).*fn1

We discuss each of the pending motions below.

I. The Two Motions Regarding "Confidential Evaluators"

There are two motions relating to "confidential evaluators": (1) a motion from defendants to permit the submission of ex parte affidavits or interrogatory responses from these evaluators*fn2 and (2) a related motion from plaintiff seeking to preclude any testimony from them.*fn3

A. Relevant Facts

Mitchell is an attorney who served on the Assigned Counsel Panel, commonly referred to as the "18-B Panel," for the Supreme Court, New York County. At some point prior to October 1997, he applied for recertification to the Panel and for membership on the Homicide Panel. In March or April 1998, Mitchell was denied recertification. Mitchell alleges in the instant action that this decision was made on the basis of race and retaliation. See Second Amended Complaint, filed Dec. 4, 2002 (Docket #55).*fn4

Decisions whether to recertify an attorney to the 18-B Panel for the Appellate Division, First Department, were made by its "Central Screening Committee." The task of reviewing Mitchell's application for recertification fell to Judge Gerald Lebovits. As part of this review, Judge Lebovits contacted attorneys and judges regarding Mitchell's conduct as an attorney. Judge Lebovits summarized his findings in two letters dated January 24 and January 26, 1998, which were addressed to a subcommittee that had been formed to review Mitchell's application. See Docket #133, Exs. A & B. These letters contain, inter alia, a recounting of the comments of various individuals (including judges and attorneys) who spoke to Judge Lebovits about Mitchell. The parties have referred to these individuals as "evaluators" or "confidential evaluators."

During discovery, the parties disputed whether Mitchell was entitled to have access to the identities of these evaluators. In March 2005, this Court issued a decision permitting the defendants to redact the names of the evaluators from their disclosures to Mitchell. See Mitchell v. Fishbein, 227 F.R.D. 239 (S.D.N.Y. 2005), aff'd, 2005 WL 1572158 (S.D.N.Y. July 1, 2005). Further, because it was unclear at that time "whether the information being provided . . . contain[ed] clues that would allow [Mitchell] to deduce" the identities of the evaluators, the Court directed that "Mitchell may not contact any evaluator whom he is able to identify from any of the documents disclosed to him with respect to any aspect of this litigation unless he obtains leave of Court following written application made on notice to the defendants." 227 F.R.D. at 255.

B. Discussion

Each party has made a motion pertaining to these evaluators. Defendants' motion consists of the request that they be permitted to submit in camera sworn statements from these individuals to the Court. Mitchell's motion seeks to allow Mitchell to depose these individuals or in the alternative to preclude their testimony entirely.

The defendants' motion apparently was prompted by a conversation between defendants' counsel and Mitchell in which Mitchell indicated that he was not prepared to forgo any argument that Judge Lebovits had inaccurately recounted the comments of the confidential evaluators. See Docket #134 at 6. Indeed, plaintiff's opposition papers make clear that he intends to argue, for example, that "[t]here are factual inaccuracies and exaggerations in the Mr. Lebovits['s] notes that suggest to me that what he reported is not true." See Docket #149 at 9. For purposes of this motion, the Court assumes arguendo that any such claim by Mitchell would be relevant to this case.

Had their been no protective order issued with respect to the evaluators, plaintiff's contention regarding Judge Lebovits's accuracy could have been addressed through plaintiff's offering of the testimony of the evaluators themselves. The defendants, however, successfully obtained an order shielding their identities (that is, the March 2005 decision) and thus plaintiff cannot obtain their testimony to test whether Judge Lebovits accurately relayed their comments.

The March 2005 decision also effectively restrains defendants from offering the evaluators' testimony to rebut any claim that Judge Lebovits reported their comments inaccurately.

Apparently concerned about this possibility, the defendants have asked the Court to conduct an ex parte review of sworn statements from the evaluators "attesting to the comments attributed to them by" Judge Lebovits in his January letters. See Docket #134 at 2. The defendants do not say directly, however, what is the purpose of having the Court undertake this task. They state only that the Court's review would "adequately address the issue of the accuracy of Judge Lebovits's letters, resolving this issue, while being mindful of the important policy concerns of confidentiality at issue." See Docket #134 at 7.

The defendants' request is denied. To the extent that their motion is simply to "allow[] State defendants to submit for in camera review" the evaluators' statements (which is all their notice of motion, Docket #133, says), the mere submission of these materials serves no purpose and thus will be denied for this reason alone.

It seems, however, that defendants contemplate additional action by the Court following submission of the materials, which the Court will now address. Because the defendants expect that the Court's review of these statements will "resolv[e]" the issue of the accuracy of Judge Lebovits's letters, the Court can only assume that the defendants contemplate that, were the ex parte review to occur, (1) the Court would determine whether each evaluator's recollections match the report made by Judge Lebovits; and (2) if there is a match, the Court would preclude plaintiff from contending at trial that Judge Lebovits inaccurately recounted that particular evaluator's statement.

If this is what the defendants mean to request, this request too is denied. Assuming, arguendo, that the evaluators' statements match the reports of Judge Lebovits, the defendants provide no legal authority by which the Court could use statements -- which are not subject to cross-examination, are submitted ex parte, and are obviously inadmissible at trial -- to preclude plaintiff from making arguments to a jury regarding Judge Lebovits's reporting of the evaluators' statements. Nor is the Court aware of any such authority. The only cases cited by defendants to support their request, see Docket #134 at 8, are irrelevant. In In re Grand Jury Subpoena, 72 F.3d 271, 276-77 (2d Cir. 1995), it was held that a judge could rely on an ex parte Government submission in adjudicating a contempt proceeding arising from a witness's failure to testify before a grand jury. Stoddard v. United States, 710 F.2d 21 (2d Cir. 1983), also involved the submission of evidence for purposes of an adjudication by a judge -- specifically, a determination of whether the subject of a wiretap would be allowed access to records relating to the wiretap. See 18 U.S.C. ยง ...

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