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Macnamara v. City of New York

January 17, 2008

DEIRDRE MACNAMARA, ET AL., PLAINTIFFS,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard J. Sullivan, District Judge

ORDER

Plaintiffs in the above-entitled action seek, pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, to modify an order issued by the Honorable James C. Francis, Magistrate Judge, granting in part and denying in part plaintiffs' motion to compel the production of certain documents and testimony on the basis of the crime-fraud exception to the attorney-client privilege. For the following reasons, the Court denies plaintiffs' request.

I. Background

These cases are part of a larger group of cases relating to protests surrounding the 2004 Republican National Convention (the "RNC"), which have been consolidated before this Court and referred to Magistrate Judge Francis for general pretrial purposes.*fn1 Plaintiffs in this action were arrested during the RNC. The Court presumes the parties' familiarity with the facts and procedural history of this action, including those facts specifically related to the instant motions, as set forth in Magistrate Judge Francis' March 14, 2007 order (the "March 14 Order"). Below, the Court briefly recites only those facts necessary to resolution of the instant objections.

In the March 14 Order, Magistrate Judge Francis rejected plaintiffs' requests, inter alia, (1) to compel production of certain documents from defendants (the "Challenged Documents")*fn2 and (2) for an order "requiring witnesses to testify about communications" between members of the New York Police Department's ("NYPD") Legal Bureau and NYPD Officers at Pier 57.*fn3

The NYPD Legal Bureau serves as the NYPD's "in-house" counsel, advising the Commissioner and members of the NYPD on legal issues affecting the Department. (See Declaration of Assistant Deputy Commissioner Thomas P. Deopfner ("Deopfner Decl.") ¶ 2.) (March 14 Order at 22 & n.10.)

The Challenged Documents include the following items: (1) a September 3, 2003, memorandum from Deputy Chief John Gerrish to Assistant Chief Thomas Dale, and others, summarizing discussions regarding legal issues identified during a meeting of the NYPD Legal Subcommittee;*fn4 (2) an undated memorandum entitled "RNC - Some Legal Issues"; (3) a November 14, 2003 report prepared by the Legal Subcommittee for another NYPD planning group, the Operation Support Subcommittee; (4) an October 1, 2003 memorandum from the Deputy Commissioner of Legal Matters to the Commissioner entitled "Legal Issues Arising from the RNC"; and (5) a November 13, 2003 memorandum from the Commanding Officer of the Criminal Justice Bureau ("CJB") to the Commanding Officer of the Legal Bureau entitled "Arrest Processing During the 2004 RNC."*fn5

In the March 14 Order, Magistrate Judge Francis ruled that the Challenged Documents were subject to the attorney-client privilege and, therefore, not discoverable. (See id. at 15-22.) Furthermore, having reviewed the Challenged Documents in camera, Magistrate Judge Francis rejected plaintiffs' assertion that the privilege that attached to the Challenged Documents should be pierced on the basis of the "crime-fraud" exception. (Id. at 20-22.) Specifically, Magistrate Judge Francis found that plaintiffs had proffered "no evidence" establishing probable cause to believe that a fraud or crime had been committed by Legal Bureau attorneys. (Id. at 21-22.) Finally, because he found that "plaintiffs [had] not shown probable cause to believe that the Legal Bureau [had] engaged in fraud" during the RNC, Magistrate Judge Francis rejected plaintiffs' request for an order requiring witnesses to testify as to communications between Legal Bureau attorneys and arresting officers. (Id. at n.22.)

On March 28, 2007, plaintiffs filed an objection to the March 14 Order with Judge Karas. (See Pls.' Mem. at 2-3.) By order dated September 24, 2007, Judge Karas remanded the case to Magistrate Judge Francis for reconsideration of the March 14 Order in light of the deposition testimony of NYPD Sergeant Timothy Cai ("Cai"). (See Sept. 24 Order at 1-2.) With regard to Cai's testimony, Judge Karas noted that one reasonable interpretation of Officer Cai's testimony is that he included false information in the narrative section of his booking report because he was instructed to do so by a Lieutenant in the NYPD Legal Bureau. (Id.)

Subsequently, by order dated October 30, 2007 ("October 30 Order"), Magistrate Judge Francis denied plaintiffs' motion for reconsideration on the ground that, although Cai's testimony "can be construed as indicating that Cai recorded events that he did not witness as if he had personally observed them" - and, thus, provided "some support" for plaintiffs' assertion that a fraud had occurred - his testimony "[did] nothing to buttress [] plaintiffs' argument" that the Challenged Documents were used in furtherance of a crime or fraud. (Oct. 30 Order at 3-4.) Magistrate Judge Francis likewise rejected plaintiffs' assertion that the crime-fraud exception applied to "'deposition testimony regarding the role of the Legal Bureau in arrest processing during the RNC.'" (Id. (quoting Pls.' Oct. 3, 2007 Ltr. at 5).) Specifically, Magistrate Judge Francis found that, notwithstanding Cai's testimony, plaintiffs had failed to present any evidence "link[ing] particular communications [between Legal Bureau attorneys and arresting officers] with specific examples of false reporting by arresting officers." (Id.)

On November 8, 2007, plaintiffs filed objections with this Court seeking to set aside the portion of the March 14 and October 30 Orders that "den[ied] the applicability of the crime-fraud exception to the [Challenged Documents] and to deposition testimony regarding the role of the Legal Bureau in arrest processing during the RNC." (Pls.' Dec. 13, 2007 Ltr. at 3.) Plaintiffs' objections focus upon a single purportedly erroneous ruling by Magistrate Judge Francis - namely, that plaintiffs have failed to establish probable cause to believe that the Challenged Documents and/or the communications between Legal Bureau representatives and arresting officers at Pier 57 were made or used in furtherance of a fraud.*fn6 (See, e.g., id. at 2-3; Pls.' Mem. at 6 & n.2; Pls.' Reply Mem. at 3.)

II. Applicable Law

A. Standard of Review

Rule 72(a) and the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(A), provide that a district court shall reverse a magistrate judge's order regarding a non-dispositive matter only where the order is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); see Fielding v. Tollaksen, - F.3d - , 2007 WL 4322436, at *3 (2d Cir. Dec. 12, 2007). Pretrial discovery matters are "non-dispositive," and, thus, reviewed under this highly deferential standard. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990); Popular Imports, Inc. v. Wong's Int'l, Inc., 166 F.R.D. 276, 277 (E.D.N.Y. 1996). An order is "clearly erroneous" if the reviewing court is "left with the definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). An order is contrary to law "when it fails to apply or misapplies relevant statutes, case law or rules of procedure." Thompson v. Keane, No. 95 Civ. 2442 (SHS), 1996 WL 229887, at *1 (S.D.N.Y. May 6, 1996) (internal quotation marks omitted). Therefore, in accord with the standards set forth in Rule 72(a) and the Federal Magistrates Act, a magistrate judge's orders on discovery matters are entitled to substantial deference. U2 Home Entertainment, Inc. v. Hong Wei Intern. Trading Inc., No. 04 Civ. 6189 (JFK), 2007 WL 2327068, at *1 (S.D.N.Y. Aug. 13, 2007) (citing Nikkal ...


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