UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
September 2, 2009
IN RE NASSAU COUNTY STRIP SEARCH CASES
The opinion of the court was delivered by: Denis R. Hurley Senior District Judge
The purpose of this Order is to address the dispute presented in the parties' letters dated September 4, 2009, September 8, 2009, and September 9, 2009 concerning opt-out issues.
The parties are in agreement regarding Jose Silva and Walter M. Alvarez. Having reviewed the matter, the Court agrees with the parties' consensus. Accordingly, Walter Alvarez who is a class member, as opposed to the Walter M. Alvarez who received the notice and indicated he was never arrested in New York, shall remain a member of the class. Further, the determination as to Mr. Jose Silva's status shall be held in abeyance pending his written confirmation that he wishes to remain in the class.
The Court now turns to the parties' dispute regarding Mr. William Potts. First, whether as a "member of the class" witness or a fact witness, Mr. Potts is subject to being called as a witness by the Defendants. Parenthetically, the Court notes that, in the absence of authority to the contrary, whether Mr. Potts should be excluded or remain as a member of the class depends entirely on whether he properly opted out in accordance with the deadline established by this Court. Second, Defendants' request for an opportunity to speak to Mr. Potts to address his housing concerns is granted to the following extent: Defendants shall be permitted to speak telephonically with Mr. Potts, with counsel for Plaintiffs participating in the telephone call, solely to address Mr. Potts' housing concerns. Finally, it would be inappropriate, as violative of due process, for the Court to Order the New York State Department of Correctional Services to maintain Mr. Pott's housing assignment. If the County is able to assist Mr. Potts in that regard, they are free to do so.
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