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Cohen v. City of New York

May 6, 2010

JULIA R. COHEN, PLAINTIFF,
v.
THE CITY OF NEW YORK, A MUNICIPAL ENTITY, NEW YORK CITY POLICE OFFICERS STEVEN CHOINSKI, SHIELD : # 28673, AND "JOHN DOES" AND "SALLY: ROWES," INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, JOSEPH ESPOSITO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF THE NEW YORK CITY POLICE DEPARTMENT, RAYMOND KELLY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS NEW YORK CITY POLICE COMMISSIONER, BRUCE SMOLKA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS AN ASSISTANT CHIEF IN THE NEW YORK CITY POLICE DEPARTMENT AND IN PATROL BOROUGH MANHATTAN SOUTH, DEFENDANTS.



The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge

(ECF)

MEMORANDUM AND ORDER

This is one of many cases arising from the arrests of approximately 1,800 people during the Republican National Convention (the "RNC") in New York City in the summer of 2004. The City of New York and the individual defendants (collectively, the "City") seek discovery from the New York City Chapter of the National Lawyers Guild (the "Guild") and I-Witness Video ("I-Witness"), who arranged for legal observers and videographers to document police activity at protests during the RNC. The City requests the following discovery: (1) disclosure of the names of the videographers who filmed three videos as well as leave to subpoena the original videotapes and potentially to depose the videographers; (2) disclosure of the names of the plaintiffs and witnesses who contributed relevant videos to I-Witness or legal observer notes to the Guild; (3) leave to subpoena Aimee Jennings, a videographer; and (4) production of the "video portion" of an index possessed by I-Witness and the Guild.

Background

I will assume the parties' familiarity with the background of this discovery dispute, as set forth in my earlier decision, Cohen v. City of New York, 255 F.R.D. 110 (S.D.N.Y. 2008). As a result of that decision, I-Witness produced 278 videotapes to the City in May 2009. (Letter of Harry Sandick dated Feb. 1, 2010 ("I-Witness Response") at 13 n.12; Letter of James Mirro dated Dec. 30, 2009 ("Def. Motion") at 1). Additionally, the Guild produced certain documents legal observer notes, photographs, and witness statements to the defendants in January and July of 2009. (Def. Motion at 5). At the time, the parties stipulated to redaction of the names of videographers and legal observers. Cohen, 255 F.R.D. at 122, 126.

On December 17, 2009, the City deposed Eileen Clancy, the President and sole employee of I-Witness. (Deposition of Eileen Clancy dated Dec. 17, 2009 ("Clancy Dep."), attached as Exh. B to Letter of James Mirro dated Jan. 12, 2010 ("Def. Supp. Motion"), at 1, 17-18). During the deposition, Ms. Clancy revealed that some RNC-related videos in the possession of I-Witness or others had not been produced during the May 2009 production. (Clancy Dep. at 65-72). Ms. Clancy explained that I-Witness had not turned over documents that she considered to be non-responsive to the City's requests, which included videos that did not show "protests, demonstrations or arrests" (Clancy Dep. at 66, 71) and those created by the New York Police Department. (Clancy Dep. at 70-71, 78). She further stated that I-Witness had not produced "a handful" of videos that were not a part of its "original collection." (Clancy Dep. at 72). These videos included those that she possessed on loan for a limited amount of time while she "did some consulting work for attorneys" as well as some that she "simply gave back" to a Guild volunteer without making a copy because she "didn't think that they were worthwhile to go into the collection." (Clancy Dep. at 73-74).

Finally, Ms. Clancy mentioned one video in particular that did not become a part of I-Witness' permanent collection. (Clancy Dep. at 80-81). She testified that she had never seen the video, but had heard that it depicted a "man who was arrested for kicking [a] police officer on [a] motorcycle." (Clancy Dep. at 81-83). Later, I-Witness informed the City that Aimee Jennings was the videographer that shot that video. (Def. Supp. Motion at 1). After Ms. Clancy's deposition, I-Witness approached those who possessed the previously undisclosed videos and turned over to the City all but the one possessed by Ms. Jennings. (Letter of Harry Sandick dated Jan. 5, 2010 ("I-Witness Letter"), attached as Exh. A to Def. Supp. Motion, at 1-2).

When I-Witness made its original production of videos to the City in May 2009, the videos were labeled numerically and listed in a "video production appendix." (Clancy Dep. at 230). The numbers originated from a complex database that tracks videos, descriptions of videos, photographs, legal observer notes, the identities of videographers and legal observer teams, and other information "derived from [Guild] attorneys." (Clancy Dep. at 224-34). The Guild arranged for the creation of this database, which was developed by a Guild Information Technology specialist together with Ms. Clancy, Guild volunteers and Guild lawyers. (Clancy Dep. at 225-26, 231, 233). The database is currently in the possession of the Guild, and I-Witness has a copy that was made in 2005. (Clancy Dep. at 235-36).

The discovery disputes currently at issue result from Ms. Clancy's deposition testimony and I-Witness' subsequent video production.

Discussion

A. The Scope of Discovery

Generally, "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense[.]" Fed. R. Civ. P. 26(b)(1). "Although not unlimited, relevance, for purposes of discovery, is an extremely broad concept." Condit v. Dunne, 225 F.R.D. 100, 105 (S.D.N.Y. 2004); see Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 167 (S.D.N.Y. 2004); Melendez v. Greiner, No. 01 Civ. 7888, 2003 WL 22434101, at *1 (S.D.N.Y. Oct. 23, 2003). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). The burden of demonstrating relevance is on the party seeking discovery. See Mandell v. Maxon Co., No. 06 Civ. 460, 2007 WL 3022552, at *1 (S.D.N.Y. Oct. 16, 2007).

Once relevance has been shown, it is up to the responding party to justify curtailing discovery. Condit, 225 F.R.D. at 106; Melendez, 2003 WL 22434101, at *1. "[T]he court must limit the frequency or extent of discovery" when:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, ...


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