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Conte v. County of Nassau

May 15, 2009

ANTHONY CONTE, PLAINTIFF,
v.
COUNTY OF NASSAU, NEW YORK; BOB EMMONS, INDIVIDUALLY AND AS ASSISTANT DISTRICT ATTORNEY OF NASSAU COUNTY, NEW YORK; PHILIP WASILAUSKY, INDIVIDUALLY AND AS ASSISTANT DISTRICT ATTORNEY OF NASSAU COUNTY, NEW YORK; WILLIAM WALLACE, INDIVIDUALLY AND AS ASSISTANT DISTRICT ATTORNEY OF NASSAU COUNTY, NEW YORK; CHRISTINA SARDO, INDIVIDUALLY AND AS ASSISTANT DISTRICT ATTORNEY OF NASSAU COUNTY, NEW YORK; MIKE FALZARNO, INDIVIDUALLY AND AS SPECIAL INVESTIGATOR FOR THE OFFICE OF THE DISTRICT ATTORNEY OF NASSAU COUNTY, NEW YORK; RHODA ZWICKER, INDIVIDUALLY AND AS A CLERK IN THE NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE, NASSAU COUNTY, NEW YORK; TEFTA SHASKA, INDIVIDUALLY AND AS A DETECTIVE FOR THE POLICE DEPARTMENT OF THE CITY OF NEW YORK; LARRY GUERRA AND "JOHN" AND "JANE" DOES, 1-20, UNKNOWN INDIVIDUALS AND EMPLOYEES OF THE NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE, DEFENDANTS.



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the court is the motion of the defendants, County of Nassau (the "County"), Bob Emmons ("Emmons"), Philip Wasilausky ("Wasilausky"), William Wallace ("Wallace"), Christina Sardo ("Sardo") and Mike Falzarno ("Falzarno") (collectively, the "County defendants"), seeking a protective order for more than seventy (70) documents withheld in response to document requests by the plaintiff, Anthony Conte ("plaintiff" or "Conte").*fn1 The County Defendants assert that the challenged documents are subject to one or more evidentiary privileges and are therefore exempt from disclosure. For the following reasons, the County defendants' motion is granted in part and denied in part.

BACKGROUND

Familiarity with the underlying facts of this action is presumed. Plaintiff commenced this action, pro se, on August 30, 2006, alleging numerous federal and state claims, arising out of an allegedly unlawful investigation and prosecution. Plaintiff has amended his Complaint twice since the commencement of this action: first, on January 25, 2007 and again on April 5, 2007.

By Memorandum and Order, dated March 31, 2008, Judge Bianco, the district judge assigned to this action, dismissed all claims against the defendants City of New York, the New York City Police Department, the Nassau County District Attorney's Office and individual defendants Denis Dillon, Katherine Rice, Lisa Bland and Robert Vinal. See Conte v. County of Nassau, No. 06-CV-4746, 2008 U.S. Dist. LEXIS 25694, at *102 (E.D.N.Y. Mar. 31, 2008). Judge Bianco also dismissed plaintiff's 42 U.S.C. § 1985 claim, 42 U.S.C. § 1986 claim, due process and equal protection claims, and Lanham Act claims, as well as all claims against the individual defendants in their official capacities. See id. Pursuant to the March 31, 2008 Memorandum and Order of Judge Bianco, discovery is proceeding as to the following causes of action: "the Section 1983 claims for false arrest/false imprisonment, malicious prosecution and violations of the First Amendment, the Section 1983 conspiracy claim, the Monell claim, the abuse of process claim, and the state law claims."*fn2 Id. The plaintiff's claim against the County defendants - as to the malicious prosecution and false arrest/imprisonment causes of action - is that although they were in possession of evidence showing the absence of probable cause to pursue a criminal investigation and/or prosecution, they nonetheless continued with same based solely on an office policy or practice of prosecution due to the suspect's prior felony conviction for fraud.

In response to various document requests from the plaintiff, the County defendants assert that more than seventy (70) of the documents requested are exempt from disclosure based on the following privileges: (1) the work product doctrine; (2) the deliberative process privilege; (3) the law enforcement privilege; and, (4) a privilege for materials received pursuant to grand jury subpoenas. The County defendants submitted a Revised Privilege Log, listing the documents and the privileges claimed, in support of their position. Plaintiff objects to the County defendants' assertions of privilege and seeks production of all of the requested documents.

DISCUSSION

I. Attorney Work Product

The work-product doctrine, reflected in Federal Rule of Civil Procedure 26(b)(3), "offers qualified immunity from discovery for documents 'prepared in anticipation of litigation or for trial.'" In re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 462 (S.D.N.Y. 1996) (quoting Bowne v. Ambase Corp., 150 F.R.D. 465, 471 (S.D.N.Y. 1993)). This doctrine "is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy 'with an eye toward litigation,' free from unnecessary intrusion by his adversaries." United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (quoting Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)). The party asserting the protection of the work-product privilege bears the burden of establishing that such protection is warranted. See Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, No. 03 Civ. 5560, 2008 U.S. Dist. LEXIS 77018, at *29 (S.D.N.Y. Oct. 2, 2008); In re Kidder Peabody, 168 F.R.D. at 462.

"[T]hree conditions must be met in order to earn work product protection. The material must (1) be a document or tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by or for his representatives." Kingsway, 2008 U.S. Dist. LEXIS 77018, at *29 (citing cases) (alteration in original). With respect to the second element of the test, the Second Circuit has explained that the appropriate inquiry is whether "in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Adlman, 134 F.3d at 1202 (quotation omitted). Accordingly, the "threshold issue" when determining whether the work-product doctrine is applicable in a given case requires an inquiry into "the primary motivational purpose behind the creation of the document." Kingsway, 2008 U.S. Dist. LEXIS 77018, at *31 (citing cases)

Pursuant to Rule 26(b)(3), even documents that are protected by the work-product doctrine may be discoverable where the "discovering party demonstrates a sufficiently pressing need for the data." In re Kidder Peabody, 168 F.R.D. at 462 (quotation omitted). To satisfy this standard, the discovering party must establish that "it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means." Fed. R. Civ. P. 26(b)(3)(A); see also Adlman, 134 F.3d at 1197; In re Kidder Peabody, 168 F.R.D. at 462.

Even where this burden has been satisfied, however, the court "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation," Fed. R. Civ. P. 26(b)(3)(B), commonly referred to as "opinion work product." Adlman, 134 F.3d at 1197. "Special treatment for opinion work product is justified because, 'at its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.'" Id. at 1197 (quoting United States v. Nobles, 422 U.S. 225, 238 (1975)).

Here, the County defendants claim work-product protection for sixty-one (61) documents listed on the Revised Privilege Log.*fn3 Such documents consist of the following categories:

(a) four (4) grand jury subpoenas (Doc. Nos. 1, 5, 6, and 7);

(b) three (3) sets of handwritten notes by defendant Assistant District Attorney ("ADA") Wallace (Doc. Nos. 2-4);

(c) a memo from the Nassau County District Attorney's ("DA") office to Joseph Cutolo, who is not identified, regarding a "bad check complaint" (Doc. No. 13);

(d) fifteen (15) documents pertaining to research conducted by defendant Falzarno, a Special Investigator for the DA's office, as well as his memos, handwritten notes, emails and contact lists (Doc. Nos. 21, 47, 64-65, 67-70, 72-75, 77-79);

(e) two (2)pages of a document entitled "Smartshopper Guide" (Doc. No. 22);

(f) a document listed as "NYS Dept. of State" regarding I Media Corp. (Doc. No. 23);

(g) two (2) "print-outs" from computers in the DA's office regarding plaintiff (Doc. Nos. 24, 48);

(h) eleven (11) inter-departmental memos within the DA's office concerning plaintiff and I Media Corp. (Doc. Nos. 26-29, 40-42, 44-46, 51.)

(i) nine (9) lists of individuals who filed complaints against plaintiff, some of which contain handwritten notes ...


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