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Children First Foundation, Inc. v. Martinez

December 10, 2007


The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge


The State Defendants served upon Children First Foundation (CFF) a privilege log. See Dkt. No. 114-13, Privilege Log. After engaging in conferences with the other parties and the Court about the State Defendants' asserted privileges and their impact upon future disclosure and depositions, CFF filed a Motion to Compel the disclosure of approximately 374 pages of documents, which the the State Defendants claim are privileged under various legal doctrines. Dkt. No. 113, Pl's. Mot. to Compel, dated June 1, 2007. The State Defendants oppose CFF's Motion and, in doing so, provided a privilege log and submitted to the Court for an in camera review those documents designated as privileged.*fn1 Dkt. No. 114. Defendant Pataki joins the State Defendants in opposing the Motion to Compel. Dkt. No. 118, Ira J. Lipton, Esq. Decl., dated July 20, 2007. Other than recognizing that the privileges were properly asserted by the State Defendants, Defendant Martinez takes no further position with respect to the pending Motion. Dkt. No. 122, Mark J. McCarthy, Esq. Decl., dated July 20, 2007. As to Defendant Dunn, she filed, under seal, a Response to Plaintiff's Motion to Compel which, in essence, is a Cross Motion asserting that the privileges cloaking selected documents should be waived. Dkt. No. 116, Linda J. Clark, Esq. Decl., dated July 19, 2007, & Dkt. No. 117, Dunn's Mem. of Law, dated July 19, 2007. Because of the complexity of the Motions, the Court granted CFF and the State Defendants the opportunity to file a Reply and Sur-Reply, respectively. On July 20, 2007, CFF filed a Reply to the State Defendants' Opposition (Dkt. No. 121), and the State Defendants filed their Reply (Dkt. No. 147) to Dunn's Cross Motion on September 20, 2007.


Even though familiarity with the facts could be presumed, a brief recitation of the case history is warranted.*fn2

A. CFF's Complaint

Pursuant to New York's Vehicle and Traffic Law § 401 et seq., the Commissioner of the Department of Motor Vehicles (hereinafer "DMV") was granted authority to establish three distinct categories of custom license plates: "Historical and Vintage Plates," "Special Number Plates," and "Picture Plates." Dk. No. 49, First Am. Compl. at ¶¶ 10-13.*fn3 Basically, picture plates are commonly known as logo plates which permit a picture or logo in addition to an identification plate number. Id. at ¶ 16. As a part of the picture plate program, there are several sub-categories, which include, inter alia, "Organizations and Causes." Id. at ¶ 17. A significant feature of this program permits picture plates to be used to raise funds for non-profit agencies. Although many of these "Organizations and Causes" picture plates have already been approved by the State Legislature, the majority are approved by the New York Department of Motor Vehicles (DMV). Id. at ¶¶ 21-27.

CFF, a New York not-for-profit corporation, submitted an application to the DMV for a picture plate that would have the tag line "Choose Life." Id. at ¶¶ 33, 39 & 50-55. CFF's application for this plate was rejected repeatedly by the Commissioner of the DMV, modifications notwithstanding. Id. at ¶¶ 50-70, Exs. to Am. Compl.

On August 4, 2004, CFF filed a civil rights action, pursuant to 42 U.S.C. § 1983, against the Defendants in their various capacities alleging that they violated CFF's constitutional rights to freedom of speech, due process, and equal protection of the law. Dkt. Nos. 1, Compl., & 49, First Am. Compl. The crux of CFF's Complaint is that the rejections of their proposed picture plate with the tag line "Choose Life" were content-based and constituted viewpoint discrimination. First Am. Compl. at ¶ 109.

Rather than serve an Answer, Defendants filed a Motion to Dismiss, pursuant to FED. R. CIV. P. 12(b)(6). Dkt. No. 7, Defs.' Mot. to Dismiss, dated Nov. 15, 2004. Among the many issues presented to the Honorable Neal P. McCurn, Senior District Judge, were the doctrine of qualified immunity and whether Defendants' actions, particularly Martinez's, were reasonable and viewpoint neutral. After hearing oral arguments, Judge McCurn ruled that CFF had sufficiently alleged violations of the First and Fourteenth Amendments to the United States Constitution, though claims for money damages against Defendants in their official capacities were dismissed. Dkt. Nos. 16, Min. Entry, dated Jan. 4, 2005, 17, & Hr'g Tr. at pp. 70-73. In terms of Defendants' qualified immunity defense, Judge McCurn decided not to consider the qualified immunity defense under a Rule 12(b)(6) motion to dismiss analysis and suggested that this affirmative defense could be asserted within an answer and raised later during a motion for summary judgment. Hr'g Tr. at p. 76.

Shortly thereafter, the State Defendants filed a Motion for Reconsideration of the January 4, 2005 Ruling and Order, pursuant to FED. R. CIV. P. 54(b), primarily raising the matter of qualified immunity again and arguing that such defense should be addressed within a motion to dismiss context. Dkt. No. 18, Defs.' Mot. to Recons. In addressing this issue, Judge McCurn found that "[D]efendants have not established that the facts on the face of the [C]omplaint support a qualified immunity defense." Dkt. No. 31, Mem.-Decision & Order, dated Mar. 14, 2005, at p. 5 (citations omitted). Defendants immediately filed a Notice of Appeal as to both the January 5 and March 14, 2005 Orders. Dkt. Nos. 23 & 32.

On March 6, 2006, the Second Circuit issued a Summary Order dismissing Defendants' appeal. Dkt. No. 35, Second Circuit Mandate; Children First Foundation, Inc., et. al. v. Martinez, et. al., 169 Fed. Appx. 637 (2d Cir. 2006). "Because the facts supporting the defense of qualified immunity do not appear on the face of the complaint," the Second Circuit decided it lacked appellate jurisdiction to address this defense at that juncture. Id. Accordingly, the Second Circuit remanded the action back to the District Court.

As noted above, the First Amended Complaint was filed on September 8, 2006 (Dkt. No. 49; see supra note 1), and an Answer to the Amended Complaint was filed on October 11, 2006 (Dkt. No. 51). Within that Answer, and in addition to denials of the allegations, the State Defendants pled affirmative defenses, including the qualified immunity defense. Dkt. No. 51 at ¶ 131 ("At all relevant times, defendants acted under the reasonable belief that their conduct was in accordance with clearly established law. They are, therefore, protected under the doctrine of qualified immunity.").*fn4

From this lawsuit's inception until approximately January 31, 2007, Defendants have had only one attorney, the Attorney General. However, on January 31, 2007, the law firm of Houguet Newman & Regal, LLP, Ira J. Lipton, Esq., of counsel, filed a Notice of Appearance on behalf of George E. Pataki in his individual capacity. Dkt. No. 59. A month later, the law firm of Hiscock & Barclay, Linda J. Clark, Esq., of counsel, filed a Notice of Appearance on behalf of Jill A. Dunn, in her individual capacity. Dkt. No. 61. And most recently, the law firm of Harris Beach PLLC, Mark J. McCarthy, Esq., of counsel, filed a Notice of Appearance on behalf of Raymond P. Martinez in his individual capacity. Dkt. No. 106. Shortly after Dunn was represented in her individual capacity by a private firm, she sought to amend her Answer to add the government speech doctrine and establishment clause neutrality defense as affirmative defenses in this action. Dkt. No. 67, Dunn's Mot. to Amend Answer, dated Mar. 22, 2007. On August 3, 2007, this Court granted Dunn the right to amend her Answer to add the establishment clause neutrality defense but denied her the right to plead the government speech doctrine. Dkt. No. 128, Mem-Decision & Order.*fn5

B. Pending Motions

We are uncertain when the State Defendants' served their privilege log (Dkt. No. 114-13), wherein they asserted the deliberative process privilege, the attorney-client privilege, and the work product doctrine, upon all other parties. But we do know that the service of the log did not initially trigger either a motion to compel from opposing parties nor a motion for protective order from the State Defendants. It appears likely that the current wave of motions were triggered by the State Defendants' Letter-Brief, dated March 23, 2007 (Dkt. No. 70), that eventually segued into a Discovery Hearing held on March 30, 2007. See Dkt. No. 154, Hr'g Tr. Several complex and sensitive issues related to the State Defendants' asserted privileges were discussed during this Discovery Hearing. Yet, the most sensitive and prominent topic discussed during the Hearing involved Dunn and whether she could pierce her client's (DMV) and the State Defendants' asserted privileges in order to defend herself. Such piercing, of course, would be compounded by the matter of an attorney's ethical obligations to her client. Based upon the nature and complexity of these issues, we issued an Order granting Dunn permission to file a Motion for a Privilege Ruling. Dkt. No. 83, Order, dated Mar. 30, 2007. Because the parties would be delving into sensitive issues and facts, the Court also directed, in accordance with In re New York Times Co., 828 F.2d 110 (2d Cir. 1987) and Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006), that the motions be filed under seal, with redacted memoranda of law to be filed on the Court's Docket and served on Plaintiff's and Pataki's counsel. Id. at pp. 2-3. Furthermore, the documents and communications at issue with respect to the asserted privileges, along with supporting affidavits providing, inter alia, an explanation of why the specific document is protected by one of the privileges, were to be filed under seal for an in camera review. Id. at p. 3.*fn6

At the time this Order was issued, we were under the impression that only Dunn was anxious to address the privilege issues and our briefing schedule reflected that belief. Id. at pp. 3-4. However, Dunn submitted a Letter Motion mentioning that the normal sequence of a motion that pertains to privileged documents should be commenced by the Plaintiff as well as raising reasons why Dunn should not take the lead on such a motion because of attorney-client ethical considerations. Dkt. No. 85. Shortly thereafter the parties submitted a new briefing stipulation (Dkt. No. 89), which was granted. Dkt. No. 90, Text Order, dated Apr. 16, 2007.*fn7

There are 374 pages of documents that the State Defendants assert are protected by one or more privileges, which were submitted for an in camera review. Dkt. No. 114-13, Privilege Log.

CFF filed its Motion to Compel and, obviously, not being privy to the documents claimed to be privileged, CFF was relegated to discussing the legal issues broadly. Dkt. No. 113-2, Pl.'s Mem. of Law. In turn Dunn, seeking disclosure of privileged documents and permission to testify accordingly in order to defend herself, raises two grounds in her Cross Motion namely that such disclosure is permitted pursuant to (1) New York Disciplinary Rule 4-101(C)(4) (attorney may pierce the attorney-client privilege in order to defend herself) and (2) an "at issue" waiver has resulted from the assertion of the qualified immunity affirmative defense. Dkt. Nos. 116 & 117.

The State Defendants oppose both Applications and have submitted the requisite affidavit elaborating on the nature and the circumstances of the asserted privileges. Dkt. Nos. 114 & 147.


A. Privilege Log

Plaintiff stakes the position that these Logs fail to comport with statutory requirements and because of the inadequacy of the Logs this Court should deem all of the privileges listed therein waived for all purposes. Controverting Plaintiff's position, Defendants defend the adequacy of the Logs, however, if the adequacy of the Logs is found to be unsatisfactory, Defendants argue vociferously that the suggested remedy of a wholesale waiver is drastic, unwarranted, and untenable. In terms of the adequacy of the Logs, we agree with the Plaintiff's assessment.

A proponent of a privilege log must " expressly make the claim and describe the nature of the documents, communications, or tangible things not produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." FED. R. CIV. P. 26(b)(5)(A)(i) & (ii).*fn8 In this respect, and in order to evaluate and facilitate the determination of whether a privilege exists, courts generally require compliance with this statutory mandate that an adequately detailed privilege log be provided. United States v. Constr. Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996) (citations omitted). Without an adequately detailed privilege log, the opposing party and even the courts are hamstrung in their attempt to decipher the presence and the extent of the claimed privilege. An acceptable privilege log, at a minimum, should provide facts that would establish each element of the claimed privilege as to each document, and "identify each document and the individuals who were parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure. Other required information, such as the relationship between individuals not normally within the privileged relationship, is then typically supplied by affidavit or deposition testimony." Trudeau v. New York State Consumer Prot. Bd., 237 F.R.D. 325, 334 (N.D.N.Y. 2006) (quoting United States v. Constr. Prod. Research, Inc., 73 F.3d at 473 & citing Strougo v. BEA Assoc., 199 F.R.D. 515, 519 (S.D.N.Y. 2001)). In determining the asserted privileges, courts have broad discretion as to how to proceed and can use an adequately detailed privilege log along with "evidentiary submissions to fill in any factual gaps." Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993); see also In re Grand Jury Subpoenas Duces Tecum, 798 F.2d 32 (2d Cir. 1986) (affidavit and documents submitted in camera); In re John Doe Corp., 675 F.2d 482 (2d Cir. 1982) (same).*fn9 When a party fails to comply with the requirements of Rule 26(b)(5) by submitting a privilege log that is inadequate by virtue of not providing sufficient support of the privilege, the claim of privilege may be denied. Johnson v. Bryco Arms, 2005 WL 469612, at *3-4 (E.D.N.Y. Mar. 1, 2005) (citing United States v. Constr. Prod. Research, Inc., 73 F.3d at 474).

CFF challenges the sufficiency of the Log, claiming further that it is devoid of any factual indications to support that a specifically referenced document's content is indeed privileged. Dkt. No. 113-2, Pl.'s Mem. of Law at pp. 6-7, & 9-10. Similarly, CFF notes that the State Defendants have failed to describe the nature of the documents in a manner such that a reasonable person could discern whether the privilege is properly asserted. Consequently, the paucity of information has caused CFF to make a blanket challenge to all of the documents listed. Id. at p. 7. In viewing the Log, we agree with CFF that the "subject matter" substance is not detailed enough to permit a reasonable judgment on the specific documents. Considering the deficiencies of the State Defendants' Log, it would, nonetheless, be too austere a remedy to deny the asserted privileges when the deficiencies have been readily rectified by a more comprehensive, sealed affidavit. Export-Import Bank of United States v. Asia Pulp & Paper Co., Ltd., 232 F.R.D. 103, 111 (S.D.N.Y. 2005) (directing the proponent of a privilege what other specificity is required). Although CFF remains at a disadvantage, the Court, relying upon the sealed affidavit, has ample information to fully appreciate the disputation on the privileges. Trudeau v. New York State Consumer Prot. Bd., 237 F.R.D. at 335.

Conversely, it is unfair for the State Defendants to chastise CFF for making nonspecific blanket objections to the Log and it is also unreasonable for them to protest that CFF's objections are not sufficiently focused in order to compel disclosure. Dkt. No. 114-2, State Defs.' Mem. of Law at pp. 3-4. CFF cannot be held solely responsible for the brevity or lack of specificity with its objections because the Log is relatively sparse as to the nature of the documents and why one or more privileges may attach thereto, and, additionally, CFF was not privy to the documents in question. Considering the quantity and quality of the information provided in the Log, CFF was still able to discuss reasonably well a number of documents and why the privileges should not survive and ...

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