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Macnamara v. City of New York

March 31, 2008


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


Defendants in the above-entitled action seek, pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, to set aside 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 notwithstanding defendants' assertion of the law enforcement and deliberative process privileges. For the following reasons, the Court modifies in part, and adopts in part, Judge Francis's order.


This action is one of many relating to protests surrounding the 2004 Republican National Convention (the "RNC") held in New York City. The actions have been consolidated before this Court and referred to Judge Francis for general pretrial purposes.*fn1 Plaintiffs in this action were arrested during RNC-related demonstrations. The Court presumes the parties' familiarity with the facts and procedural history of this action, including those facts specifically related to the instant application, as set forth in Judge Francis's April 20, 2007 Order (the "April 20 Order"). Below, the Court briefly recites only those facts necessary to resolve defendants' objections.

In the April 20 Order, Judge Francis addressed plaintiffs' request for an order compelling defendants (1) to produce certain documents in unredacted form that defendants had withheld on the basis of the deliberative process and law enforcement privileges, and (2) to answer questions relating to the presence and activities of undercover or plainclothes officers at demonstrations during the RNC.*fn2 (See April 20 Order at 2-3.) With regard to the overwhelming majority of the documents, Judge Francis found that defendants had failed to discharge their threshold burden of establishing the applicability of the respective privileges at issue. (See April 20 Order at 24.)

First, Judge Francis found that the following categories of documents withheld by defendants were not subject to the deliberative process privilege: (1) the "Civil Disturbance Subcommittee Documents" (the "Subcommittee Documents"), which consist of agendas and memoranda relating to meetings of that subcommittee prior to the RNC (id. at 5-8; see Bates Nos. 5734-5745, 5679-5683, 5688-5690, 5721-5725); (2) the "Criminal Justice Bureau Documents" (the "CJB Documents"), which consist of certain documents relating to the NYPD's plans for arrest processing during the RNC (April 20 Order at 8-10; see Bates Nos. 5686-5687, 5691-5705, 6019-6023, 6025-6040); and (3) three e-mails relating, respectively, to "Possible Mayor Talking Points" for a planned meeting of the Mayor and the Police Commissioner regarding the RNC, the NYPD's plans to stage drills prior to the RNC, and the NYPD's plans to use Pier 57 as a "Post-Arrest Staging Site" during the RNC (April 20 Order at 10-11; see Bates Nos. 100003750, 100003747, 100005945).

In support of their assertion of the deliberative process privilege, defendants relied principally on a declaration from Raymond W. Kelly, the Police Commissioner of the City of New York (the "Kelly Declaration"), wherein Commissioner Kelly set forth the potential risks that would allegedly arise from disclosure of certain documents. (See Kelly Decl. ¶¶ 9-10.) However, Judge Francis found that the assertions contained in the Kelly Declaration, while "undoubtedly true," did not satisfy defendants' initial burden of showing that the deliberative process privilege applied to the documents at issue. (See April 20 Order at 7- 8.)

Second, Judge Francis found that the following categories of documents, save for certain exceptions noted infra, were not subject to the law enforcement privilege:

(1) the "Disorder Control Incident Documents" (the "Disorder Documents"), which were prepared by NYPD employees for review by higher ranking NYPD officials prior to the RNC and contain, among other things, "hypothetical scenarios" regarding possible unlawful activity in New York City and "talking points" regarding steps that the NYPD should take in order to deal with such incidents (id. at 13-14; see Bates Nos. 5849-5855, 6056-6062, 10587- 10601);

(2) the "Legal Subcommittee Meeting Do c ume n t s " (the "Lega l Documents"), which consist of two memoranda dated January 7, 2004 and March 2, 2004 (the "January 7 Memo" and "March 2 Memo") describing meetings of the subcommittee that were prepared for review by higher-ranking NYPD officials (April 20 Order at 17-18; see Bates Nos. 10491-10493, 10503- 10505);

(3) the "Critical Mass Bike Block Demonstration Presentation" (the "Bike PowerPoint"), a PowerPoint presentation that outlined the NYPD's planned response to a protest group's bicycle ride that was scheduled to occur several days before the RNC (April 20 Order at 20-21; see Bates Nos. 26267-26282, 26303-26320);

(4) the "Mobile Reserve Sector After- Action Report" (the "After-Action Report"), which is a "self-critique report" prepared by the NYPD that addresses the performance of the Mobile Reserve Sector unit during the RNC*fn3 (April 20 Order at 18-20; see Bates Nos. 15001-15033); and

(5) the "Emergency Operations Center RNC Incident Reports" (the "Operations Report"), a computer log listing, among other things, RNCrelated incidents and the NYPD's deployment of officers in response thereto (April 20 Order at 18-20; see Bates Nos. 7218-7299).

In support of their assertion of the law enforcement privilege, defendants relied principally on a declaration from NYPD Chief Thomas Graham, Commanding Officer of the NYPD's Disorder Control Unit (the "Graham Declaration"), wherein Chief Graham outlined the security risks that would allegedly arise from the disclosure of certain documents. (See Graham Decl. ¶ 1.) However, Judge Francis found that the assertions contained in the Graham Declaration regarding these harms were, inter alia, "overblown" (April 20 Order at 15) and "so vague that [they] provide[d] little assistance to the Court in determining whether the [law enforcement] privilege applies" (id. at 19).

Furthermore, with regard to all of the documents assertedly subject to the lawenforcement privilege, Judge Francis noted that the two protective orders (collectively, the "Protective Orders") previously issued in the RNC cases mitigated the risk of harm, if any, that may arise from disclosure.*fn4 (See id. at 16.) Specifically, Judge Francis observed that "there is a protective order in place in the [] RNC actions that permits the City to designate documents produced in discovery as `confidential.' Accordingly, the information contained in these documents will not be circulated publicly, but will be viewed only by plaintiffs' counsel." (Id. at 16.) Furthermore, Judge Francis noted that defendants had failed to produce any information suggesting that "`such limited production and circulation [pursuant to the Protective Orders] poses any threat to public order or safety.'" (Id. (quoting Haus v. City of New York, No. 03 Civ. 4915 (RWS) (MHD), 2004 WL 3019762, at *5 (S.D.N.Y. Dec. 29, 2004)).)

Finally, Judge Francis found that defendants had failed to establish that the law enforcement privilege applied to deposition testimony regarding the "presence and activities of undercover officers at RNCrelated demonstrations." (Id. at 23.) Similarly, he rejected defendants' invocation of the privilege as it applied to plaintiffs' request to "seek to discover the identities of undercover officers" who had "witnessed, participated in, or provided information for [plaintiffs'] arrest[s] and detention[s]." (Id.) With regard to these rulings, Judge Francis noted that the items at issue may be designated as "confidential" pursuant to the Protective Orders, and that, if necessary, defendants could apply for further protective measures - such as disclosing only the shield number of an undercover officer, or using a pseudonym - in order to ensure that an officer would not be exposed to a "significant safety risk . . . ."*fn5 (Id.)

On May 11, 2007, defendants filed objections to the April 20 Order. Defendants assert that Judge Francis erred in finding that the law enforcement and deliberative process privileges did not apply to certain items, and in directing defendants to produce the items to plaintiffs.


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, 510 F.3d 175, 178 (2d Cir. 2007). Pretrial discovery matters are "non-dispositive," and, thus, must be 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, pursuant to these standards, a magistrate judge's orders on discovery matters are entitled to substantial deference. U2 Home Entm't, Inc. v. Hong Wei Int'l Trading Inc., No. 04 Civ. 6189 (JFK), 2007 WL 2327068, at *1 (S.D.N.Y. Aug. 13, 2007) (citing Nikkal Indus., Ltd. v. Salton, Inc., 689 F. Supp. 187, 189 (S.D.N.Y. 1988) ("Consistently, it has been held that a magistrate's report resolving a discovery discourse between litigants should be afforded substantial deference and be overturned only if found to be an abuse of discretion."); see, e.g., Catskill Dev., LLC v. Park Place Entm't Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002).

B. The Deliberative Process Privilege

"The deliberative process privilege is designed to promote the quality of agency decisions by preserving and encouraging candid discussion between officials. It is based on `the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.'"*fn6 Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005) (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001)). An "inter- or intra-agency document" may be subject to the privilege if it is both (1) "predecisional" and (2) "deliberative." La Raza, 411 F.3d at 356 (quoting Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999)) (additional internal citations omitted).

A document is predecisional "when it is prepared in order to assist an agency decisionmaker in arriving at his decision." Tigue v. United States Dep't of Justice, 312 F.3d 70, 80 (2d Cir. 2002). The Second Circuit has noted some factors to consider in determining whether a document is "predecisional," including whether the organization asserting the privilege can (1) "pinpoint the specific . . . decision to which the document correlates" and (2) "verify that the document precedes, in temporal sequence, the `decision' to which it relates." Grand Cent. P'Ship, 166 F.3d at 482 (quoting Providence Journal Co. v. United States Dep't of the Army, 981 F.2d 552, 557 (1st Cir. 1992)).

A document is deliberative when it is "actually . . . related to the process by which policies are formulated." Grand Cent. P'Ship, 166 F.3d at 482 (citing Hopkins, 929 F.2d at 84) (additional citation and internal quotation marks omitted). In other words, "the privilege does not protect a document which is merely peripheral to actual policy formation; the record must bear on the formulation or exercise of policy-oriented judgment." Tigue, 312 F.3d at 80 (internal quotation marks and citation omitted). Thus, the privilege "`focus[es] on documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Grand Cent. P'ship, 166 F.3d at 482 (quoting Hopkins, 929 F.2d at 84-85) (additional internal quotation marks and citation omitted). In particular, it is wellsettled that "[d]raft documents, by their very nature, are typically predecisional and deliberative. They reflect only the tentative view of their authors; views that might be altered or rejected upon further deliberation either by their authors or by superiors." Exxon Corp. v. Dep't of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983) (internal quotation marks and citation omitted); see also Nat'l Council of La Raza v. Dep't of Justice, 339 F. Supp. 2d 572, 573 (S.D.N.Y. 2004) ("Drafts and comments on documents are quintessentially predecisional and deliberative.").

Nevertheless, a document is not "deliberative" where it concerns "purely factual" information regarding, for example, investigative matters or factual observations. See Grand Cent. P'Ship, 166 F.3d at 482; Hopkins v. U.S. Dep't of Hous. and Urban Dev., 929 F.2d 81, 85 (2d Cir. 1991). "Thus, factual findings and conclusions, as opposed to opinions and recommendations, are not protected." E.B. v. New York City Bd. of Educ., 233 F.R.D. 289, 292 (E.D.N.Y. 2005) (internal quotation marks and citation omitted).

C. The Law Enforcement Privilege

The purpose of the law enforcement privilege "is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation." In re Dep't of Investigation of City of New York, 856 F.2d 481, 484 (2d Cir. 1988) (citing Aspin v. Dep't of Defense, 491 F.2d 24, 29-30 (D.C. Cir. 1973), and Frankel v. Sec. and Exch. Comm'n, 460 F.2d 813, 817 (2d Cir. 1972)); see also Tuite v. Henry, 181 F.R.D. 175, 176 (D.D.C. 1998) ("The federal law enforcement privilege is a qualified privilege designed to prevent disclosure of information that would be contrary to the public interest in the effective functioning of law enforcement. The privilege serves to preserve the integrity of law enforcement techniques and confidential sources . . . ."), aff'd 203 F.3d 53 (D.C. Cir. 1999). "`In order to assert a claim of privilege against disclosure of police materials to a plaintiff raising federal civil rights claims . . . , the officers or the police department must do more than alert the court to the [relevant privilege] or the generalized policies which support it. The police must make a substantial threshold showing[] that there are specific harms likely to accrue from disclosure of specific materials . . . .'" Fountain v. City of New York, No. 03 Civ. 4526 (RWS), 2004 WL 941242, at *3 (S.D.N.Y. May 3, 2004) (quoting King v. Conde, 121 F.R.D. 180, 189 (E.D.N.Y. 1988) (Weinstein, J.)) (additional internal quotation marks and citation omitted); accord MacWade v. Kelly, 230 F.R.D. 379, 381 (S.D.N.Y. 2005) ("To sustain the invocation of such a privilege . . . , [the party inovking the privilege] must make a clear showing of harm if the information is disclosed.") (quoting Galvin v. Hoblock, No. 00 Civ. 6058 (MHD), 2003 WL 22208370, at *3 (S.D.N.Y. Sept. 24, 2003)). This initial burden must be discharged by presenting "those facts that are the essential elements of the privileged relationship" and not "`by mere conclusory or ipse dixit assertions.'" In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224-25 (2d Cir. 1984) (quoting In re Bonanno, 344 F.2d 830, 833 (2d Cir.1965)) (additional internal citations omitted).

However, "[a]n investigation need not be ongoing for the law enforcement privilege to apply as `the ability of a law enforcement agency to conduct future investigations may be seriously impaired if certain information is revealed.'" Nat'l Congress for Puerto Rican Rights v. City of New York, 194 F.R.D. 88, 95 (S.D.N.Y. 2000) (citing Morrissey v. City of New York, 171 F.R.D. 85, 90 (S.D.N.Y. 1997)) (additional internal citation omitted) (emphasis added); see also Black v. Sheraton Corp. of Am., 564 F.2d 531, 546 (D.C. Cir. 1977) (noting that the privilege may apply after the conclusion of an investigation where "the investigative techniques of the investigating body would be disclosed to the general public"). Thus, the law enforcement privilege applies where the defendant demonstrates that the disclosure of information, such as law enforcement "techniques and protocols," would "jeopardize future criminal investigations." Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 64 (1st Cir. 2007); see Morrissey, 171 F.R.D. at 91 (applying the privilege where disclosure of the items at issue "would seriously compromise future law enforcement investigations"); see also United States v. Winner, 641 F.2d 825, 831 (10th Cir. 1981) ("[The] law enforcement investigative privilege is based primarily on the harm to law enforcement efforts which might arise from public disclosure of investigatory files.") (internal quotation marks and ellipse omitted); cf. In re United States Dep't of Homeland Sec., 459 F.3d 565, 569 (5th Cir. 2006) (recognizing the law enforcement privilege in the Fifth Circuit and observing that "in today's times the compelled production of government documents could impact highly sensitive matters relating to national security").

D. Balancing the Parties' Interests

Both the deliberative process and law enforcement privileges are qualified privileges and, therefore, "when the existence of [the] privilege is established, there is a need to balance the public interest in nondisclosure against the need of the particular litigant for access to the privileged information." United States v. United States Currency in Sum of Twenty One Thousand Nine Hundred Dollars, No. 98 Civ. 6168 (SJ), 1999 WL 993721, at *2 (E.D.N.Y. Sept. 21, 1999) (citing Friedman v. Bache Halsey Stuart Shields, 738 F.2d 1336, 1341 (D.C. Cir. 1984), and Raphael v. Aetna Cas. & Sur. Co., 744 F. Supp. 71, 74-75 (S.D.N.Y. 1990)) (additional internal citation omitted).

Thus, in assessing the government's assertion of privilege, "[t]he court must balance the interests favoring and disfavoring disclosure, keeping in mind that the burden of persuasion rests on the party seeking to prevent disclosure. The court must also consider the value of appropriate protective orders and redactions." King, 121 F.R.D. at 190-91; see also Kitevski v. City of New York, No. 04 Civ. 7402 (RCC) (RLE), 2006 WL 680527, at *3 (S.D.N.Y. March 16, 2006) ("Whether the showing of relevance and need rises to the requisite level is a discretionary determination that must necessarily be made on a case-by-case basis."); United States v. Sawinski, No. 00 Crim. 0499 (RPP), 2000 WL 1702032, at *3 (S.D.N.Y. Nov. 14, 2000) (citing In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988)).

In his oft-cited opinion in King v. Conde, the Honorable Jack Weinstein, District Judge, set forth various factors that courts should consider when deciding whether to compel disclosure of privileged information from the government. Among the interests that may favor non-disclosure, Judge Weinstein cited (1) the threat to police officers' safety, (2) the invasion of police officers' privacy, such as through disclosure of officers' personnel records, (3) the weakening of law enforcement programs, and (4) the chilling of police internal investigative candor. 121 F.R.D. at 191-93.

As to the interests that may favor disclosure, Judge Weinstein cited, inter alia, (1) the relevance of the requested materials to the plaintiff's case, (2) the importance of the materials to the plaintiff's case, including the availability of the information from alternative sources, (3) the strength of the plaintiff's case (although, "at the discovery stage," doubts relating to this consideration "must be resolved" in the plaintiff's favor), and (4) the importance to the public interest, which is "the interest that . . . looms largest," as it "giv[es] force to the federal civil rights laws." Id. at 193-95. Furthermore, Judge Weinstein noted that, in light of "[t]he great weight of the policy in favor of discovery in civil rights" actions and "the normal presumption in favor of broad discovery," defendants' case for non-disclosure or restricted disclosure "must be extremely persuasive." Id. at 195; accord Nat'l Congress, 194 F.R.D. at 96; Morrissey v. City of New York, 171 F.R.D. 85, 92 (S.D.N.Y. 1997); Kinoy v. Mitchell, 67 F.R.D. 1, 12 (S.D.N.Y. 1975).

E. Protective Orders

When considering whether to compel disclosure of items subject to either of the above-cited privileges, the Court "must consider the effect of a protective order restricting disclosure to the plaintiff and the plaintiff's attorney, or to the plaintiff's attorney alone. Such an order can mitigate many if not all of the oft-alleged injuries to the police and to law enforcement." King, 121 F.R.D. at 190 (internal citation omitted); see Nat'l Congress, 194 F.R.D. at 96; see generally Martindell v. Int'l Tel. and Tel. Corp., 594 F.2d 291, 295 (2d Cir. 1979) (noting that "the vital function of a protective order issued under [Rule 26] . . . is to secure the just, speedy, and inexpensive determination of civil disputes . . . by encouraging full disclosure of all evidence that might conceivably be relevant"). In this case, the Protective Orders provide, inter alia, that documents designated as "confidential" are subject to limited disclosure to the parties and their counsel, (Oct. 4, 2005 Order ¶¶ 1, 5); in addition, any "intelligence documents" produced by defendants "shall be" subject to an "attorneys' eyes-only" designation, (Jan. 12, 2007 Order). Furthermore, "any confidentiality designation remains in place until challenged by the other party, at which point the designating party bears the burden of establishing that there is good cause under Rule 26(c) of the Federal Rules of Civil Procedure. Good cause exists when `disclosure will result in a clearly defined, specific, and serious injury.'" (April 20 Order at 16 & n.3 (quoting In Re Terrorist Attacks on September 11, 2001, 454 F. Supp. 2d 220, 222 (S.D.N.Y. 2006)) (internal citation omitted).)


Upon a review of the full record in this case, including the parties' respective submissions in connection with plaintiffs' motion to compel, the April 20 Order, and defendants' objections, as well as an in camera review of the unredacted versions of documents withheld from defendants, the Court modifies in part and adopts in part Judge Francis's rulings regarding the items sought by plaintiffs.

A. Deliberative Process Privilege

Defendants argue that Judge Francis clearly erred in rejecting the applicability of the deliberative process privilege. For the following reasons, the Court modifies, in part, the April 20 Order but adopts Judge Francis's conclusion that the documents at issue should be produced to plaintiffs. Below, the Court addresses each category of documents at issue.

However, as an initial matter, the Court clarifies the contours of the deliberative process privilege. Judge Francis found, inter alia, that certain documents were "nondeliberative" where they "neither evaluate[d] various alternatives nor discuss[ed] any particular individual's opinions or ideas regarding the NYPD's plans for the RNC." (April 20 Order at 9-10.) Yet, the deliberative process privilege applies more broadly to "`documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" Grand Cent. P'ship, 166 F.3d at 482 (quoting Hopkins, 929 F.2d at 84-85) (emphasis added). Indeed, the "privilege serves to protect the deliberative process itself, not merely documents containing deliberative material." See Mapother v. Dep't of Justice, 3 F.3d 1533, 1538 (D.C. Cir. 1993) ("When a summary of factual material on the public record is prepared by the staff of an agency administrator, for his use in making a complex decision, such a summary is part of the deliberative process, and is exempt from disclosure . . . .") (citing Montrose Chem. Corp. v. Train, 491 F.2d 63, 68-71 (D.C. Cir. 1974)); see also Petroleum Info. Corp. v. United States Dep't of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) ("To the extent that predecisional materials, even if `factual' in form, reflect an agency's preliminary positions or ruminations about how to exercise discretion on some policy matter, they are protected under [the privilege as codified in FOIA.]") (emphasis added). Thus, a document may be deemed "deliberative" not only where it explicitly weighs competing policy alternatives, but also where it contains a preliminary outline of a policy prepared by lower-ranking government officials for presentation to a superior ...

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