The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge
This action is unique among the many cases arising out of arrests made during the Republican National Convention (the "RNC") in 2004. As in most of the RNC cases, the plaintiff asserts claims of false arrest and violation of her First Amendment rights. However, Kaitlyn Tikkun is a transgender lesbian who also alleges that the City of New York, the New York City Police Department (the "NYPD"), and the New York City Department of Correction have implemented policies and practices that subject transgender individuals to invasive, overly intrusive searches in order to ascertain their genital status, and that certain of the defendants violated her rights by engaging in such conduct when she was arrested. (Second Amended Complaint, ¶¶ 11, 57-59, 91-104, 108).
The current controversy concerns the plaintiff's expert witness, Dean Spade, an Assistant Professor at the Seattle University School of Law. The defendants have moved to preclude the testimony of Professor Spade on the ground that the plaintiff has refused to disclose the information and data upon which this expert witness bases his opinions as required by Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. The defendants also seek an award of the costs that they incurred in taking Professor Spade's deposition. For the reasons that follow, the defendants' motion is denied.
According to his curriculum vitae, Professor Spade is a graduate of Barnard College and UCLA School of Law. (Curriculum vitae, attached to Expert Opinion of Dean Spade, Esq. ("Spade Opinion"), attached as Exh. A to Letter of Andrea J. Ritchie dated Oct. 23, 2009 ("Ritchie 10/23/09 Letter"). He was a founder of the Sylvia Rivera Law Project ("SRLP"), a civil rights organization in Manhattan that focuses on equality for gender nonconforming persons, and served as a staff attorney there from 2002 through 2006. Prior to joining the faculty at Seattle University School of Law, Professor Spade was a Lecturer at Harvard and Columbia Law Schools and a Teaching Fellow at Harvard and UCLA. For purposes of this litigation, he characterizes himself as an expert "in the field of administrative policy concerning the treatment of transgender and gender nonconforming individuals in sex segregated facilities." (Spade Opinion at 1).
In his expert report, Professor Spade offered four opinions. First, he stated that "[i]t is essential for city agencies to develop and disseminate clear and specific policies addressing the treatment of transgender individuals, particularly in the context of sex segregated facilities." (Spade Opinion at 2). Second, and most pertinent to the instant motion, he contended that "[t]he absence of such policies contributes to widespread violations of the constitutional rights of transgender people." (Spade Opinion at 3). In support of this opinion, Professor Spade related that he had testified before the New York City Equal Opportunity Commission in 2004 that "approximately 58 percent of the cases that I see [at SRLP] daily are cases that involve sex-segregated facilities on one level or another." (Spade Opinion at 3-4). Third, he went on to identify the basic elements of an appropriate policy, and, finally, he opined that the policies of the NYPD in 2004 were inadequate. (Spade Opinion at 4-5). Professor Spade then listed the information that he relied upon in reaching his opinions, including the complaint in this action; several deposition transcripts from this and other actions; NYPD policies, training materials, and internal memoranda in place during 2004; and interviews with members of the New York City Gender Identity Project. (Spade Opinion at 5-6).
In the course of deposing Professor Spade, defendants' counsel inquired about the basis for his opinions:
Q: [W]hat research have you conducted regarding the frequency with which employees of the Police Department violate -- or, in your opinion, violate laws regarding the treatment of transgender individuals?
A: I would consider my research to include literature reviews related to those questions, which include literature reviews of existing news articles; of broader studies, like the Stonewall Report produced by Amnesty International, that interviewed people who've experienced such violations; the data collected over the course of the seven years in the existence of the Sylvia Rivera Law Project, which I have access to through the database of the organization; and my interviews with other service providers and agencies in New York City that collect data about their own clients' experiences; my reading of a variety of reports that have attempted to document the kinds of experiences people have with the Police Department.
Q: Have you yourself ever performed any sort of a quantitative analysis regarding the frequency with which employees of the Police Department violate the rights, or violate the anti-discrimination laws with regard to transgender prisoners?
A: My research is primarily qualitative. My quantitative work is primarily with regard to specific policies. However, I think that the raw data that I have access to through the SRLP database would be considered a quantitative element of my research that prompted my further work in the area.
Q: This raw data you discussed, what exactly does that data consist of?
A: Intake data from every client that has come to that organization seeking legal services about their complaints, their personal needs, and issues.
Q: When you say that you looked at data regarding the frequency with which New York City Police Department employees allegedly violate rights, it's based on how many times a client has come into and discussed this at the Project?
A: That's one thing it's based on. As I had mentioned, there's several other things that ...