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Mary Ann Di Lapi and Salvador Di Lapi, As Proposed Administrators For the Estate of v. the City of New York

January 9, 2012

MARY ANN DI LAPI AND SALVADOR DI LAPI, AS PROPOSED ADMINISTRATORS FOR THE ESTATE OF
ANTHONY DI LAPI, DECEASED, AND MARY ANN DI LAPI AND SALVADOR DI LAPI, INDIVIDUALLY, PLAINTIFFS,
v.
THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, STEPHEN CARACAPPA, AND LOUIS EPPOLITO, DEFENDANTS.
RACHEL LEAH GREENWALD, AS ADMINISTRATOR OF THE ESTATE OF ISRAEL GREENWALD,
DECEASED, AND RACHEL LEAH GREENWALD, MICHAEL GREENWALD, AND YAEL GREENWALD, INDIVIDUALLY, PLAINTIFFS,
v.
THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, STEPHEN CARACAPPA, AND LOUIS EPPOLITO, DEFENDANTS.



The opinion of the court was delivered by: Azrack, United States Magistrate Judge:

ORDER

On July 19, 2011, plaintiffs were granted leave to file a motion to compel deposition testimony by non-party witness Hugh Mo ("Mo"). Having reviewed the parties' respective motion papers, and for the reasons articulated below, I hereby GRANT plaintiffs' request that Mo be compelled to testify at deposition about his mental processes during his role in defendant Louis Eppolito's 1985 New York City Police Department ("NYPD") Internal Affairs Division ("IAD") hearing.

I. BACKGROUND

Plaintiffs are two of several plaintiffs who have filed lawsuits against the City of New York, the NYPD, and former NYPD police officers Stephen Caracappa and Louis Eppolito.*fn1

These actions, brought pursuant 28 U.S.C. §§ 1983 and 1985, and 18 U.S.C. §§ 1961, 1962, and 1964, and also pleading state law negligence claims, seek redress for crimes committed by defendants Caracappa and Eppolito during their tenure with the NYPD. See generally Compl., Pipitone v. City of New York, et al., No. 06-CV-145 (E.D.N.Y.), ECF No. 1.

Non-party witness Mo is an attorney and former NYPD Deputy Commissioner of Trials who presided over defendant Eppolito's NYPD IAD hearing in April of 1985, ten months prior to the kidnapping and murder of Israel Greenwald. Mot. to Compel Dep. Testimony by Non-Party Witness Hugh Mo ("Pls.' Mot.") 1, Oct. 7, 2011. The City produced Mo for deposition on May 24, 2011, but directed him not to answer certain questions about his role in the 1985 hearing on the grounds that his thought processes are protected by the mental and judicial process privilege. See Dep. Trans. of Hugh H. Mo ("Mo Dep."), Pls.' Mot. Ex. A, 36:25--37:9, May 24, 2011. Mo was, however, allowed to answer questions about the hearing that did not pertain to his mental processes, including factual questions such as what evidence was, or was not, presented to him, and in what form it was presented. Def. City of New York and Non-Party Hugh Mo's Mem. of Law in Opp. to the Greenwald and Di Lapi Pls.' Mot. to Compel Dep. Testimony Re. Mr. Mo's Mental Impressions ("City's Opp.") 1, Oct. 7, 2011. Plaintiffs argue that Mo's testimony is crucial to their negligence and Monell theories of liability against the City. Pls.' Mot. at 2.

II. DISCUSSION

The mental process privilege "involves uncommunicated motivations for a polic[y] or decision, [and] has been applied in both the adjudicative and legislative context." N. Pacifica, LLC v. City of Pacifica, 274 F. Supp. 2d 1118, 1122 (N.D. Cal. 2003). "It is well-settled that the decision-making processes of judges are not generally subject to discovery." McGoldrick v. Koch, 110 F.R.D. 153, 155 (S.D.N.Y. 1986) (citing, among other cases, United States v. Morgan, 313 U.S. 409, 422 (1941)). Generally speaking, "[i]n order for judicial testimony to be required, the testimony must relate to the judge's factual knowledge-not his mental processes." United States v. Roth, 332 F. Supp. 2d 565, 568 (S.D.N.Y. 2004).

Preliminarily, plaintiffs appear to suggest that because (1) Mo is not a judge, and presided over the hearing as Deputy Commissioner of Trials in his capacity as an attorney, and (2) he left the NYPD twenty-five years ago, no privilege applies to Mo in the context of the hearing. See Pls.' Mot. at 7. However, as noted by the City, "[w]here, as here, the administrator is acting in the role of a judicial officer, the principles underlying immunity from discovery apply with full force." McGoldrick, 110 F.R.D. at 155. Therefore, for purposes of this motion, the Court assumes that Mo was eligible to invoke the mental process privilege, which protects the mental processes of quasi-judicial officers concerning their roles in administrative hearings.*fn2 Id.; see also Singer Sewing Mach. Co. v. NLRB, 329 F.2d 200, 206 (4th Cir. 1964) ("The mental process rule protects the secret mental processes of those who, acting in a judicial or quasi-judicial capacity, make decisions as to facts or as to law.").

Plaintiffs assert three arguments as to why Mo should be compelled to testify about his mental processes during Eppolito's IAD hearing: (1) Mo's mental processes are not privileged because plaintiffs raise a prima facie showing of government misconduct, Pls.' Mot. at 8--9; (2) Mo waived any privilege that applied when he freely and openly discussed his hearing decision with third parties, id. at 9--13; and (3) the City independently waived any privilege that applied when it declined to assert any privilege at the deposition of William Medican, the prosecuting Department Advocate in Eppolito's 1985 hearing,*fn3 id. at 13. I will analyze each of these arguments in turn.

(1) Mo's Mental Processes are not Privileged Because Plaintiffs Raise a Prima Facie Showing of Government Misconduct As noted by plaintiffs, the mental process privilege is not absolute. See Singer 329 F.2d at 206; see also Nat'l Nutritional Foods Ass'n v. FDA, 491 F.2d 1141, 1145 (2d Cir. 1974). An established exception to the mental process privilege exists for quasi-judicial officers in administrative proceedings where "a party has made a prima facie showing that the decision by an agency or a judicial officer is tainted by impropriety," McGoldrick, 110 F.R.D. at 155, or "upon a strong showing of bad faith or improper behavior," United States v. Ianello, 740 F. Supp. 171, 187 (S.D.N.Y. 1990), rev'd on other grounds sub nom., United States v. Salerno, 937 F.2d 717 (2d Cir. 1991). Where a party has made such a prima facie showing, "the decision-making process may be an appropriate subject of inquiry." McGoldrick, 110 F.R.D. at 156.

However, "[m]ere assertions that there was bad faith on the part of the decision-maker will not suffice." Id. at 156 (citations omitted).

Plaintiffs argue that discovery in this case demonstrates that despite overwhelming evidence against Eppolito, "the department thwarted Eppolito's disciplinary hearing by agreeing to stipulations . . . that not only failed to account for the abundant facts in their possession showing Eppolito was guilty, but also contradicted many of the facts they possessed as to Eppolito's guilt." Pls.' Mot. at 9. According to plaintiffs, the factually-flawed stipulations and the fact that the Department Advocate Medican declined to give a closing argument at Eppolito's hearing "suffices for a prima facie showing of impropriety or government misconduct surrounding this hearing." Id.

The City maintains that plaintiffs make no showing that Mo, individually, acted improperly, and that any alleged improprieties on the part of the Department Advocate should not be used to "pierce" Mo's privilege. City's Opp. at 3--4. The City further contends that, "the only evidence reviewed by [Mo] was the evidence that was presented at the trial, ...


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