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Kelton Davis, et al v. the City of New York

February 27, 2012

KELTON DAVIS, ET AL., PLAINTIFFS,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



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

OPINION AND ORDER

I. Introduction

This is a civil rights action brought pursuant to 42 U.S.C. § 1983, and other federal and state laws, in which the plaintiffs, on behalf of themselves and a class of similarly situated individuals, seek injunctive and declaratory relief and damages resulting from defendants' allegedly unlawful trespass enforcement policies and practices.

By notice of motion dated October 21, 2011, plaintiffs move for an Order pursuant to Rule 37 of the Federal Rules of Civil Procedure, compelling the production of certain documents*fn1 that defendants are withholding on the basis of the attorney-client and the deliberative process privileges (Docket Item 119). For the reasons set forth below, plaintiffs' motion is granted in part and denied in part.

II. Facts

A. Background

Plaintiffs allege that defendants, the City of New York (the "City") and the New York City Housing Authority ("NYCHA"), "operating through and in conjunction with the New York City Police Department ("NYPD"), conduct, enforce and sanction unlawful trespass arrest policies and practices [which] result in a pattern and practice of unlawful stops, seizures, questioning, frisks, searches, and arrests of residents of, and authorized visitors to, NYCHA public housing residential property" (Amended Complaint, dated May 27, 2011 (Docket Item 69) at ¶ 2). Plaintiffs' allegations are set forth in greater detail in an opinion issued by the Honorable Shira A. Scheindlin, United States District Judge, denying the City's motion for partial summary judgment. Davis v. City of N.Y., 10 Civ. 699 (SAS), 2011 WL 2652433 (S.D.N.Y. July 5, 2011). Judge Scheindlin summarized the facts relevant to the present discovery dispute in an Order, dated May 5, 2011, as follows:

At the time this suit was instituted, the NYPD policy at issue was reflected, in part, in section 212--60 of the NYPD Patrol Guide ("P.G. 212--60"), entitled "Interior Vertical Patrol of Housing Authority Buildings."

In response to complaints [and] concerns . . . . NYPD Police Commissioner Raymond Kelly delegated to S. Andrew Schaffer, NYPD Deputy Commissioner for Legal Matters, the task of revising P.G. 212--60 in consultation with high-ranking NYPD personnel and attorneys from the New York City Corporation Counsel. On July 8, 2010, P.G. 212--60 was replaced by Interim Order number 23 ("I.O. 23"). Although I.O. 23 contains much of the same information as its predecessor, it differs in that it "discusses in enhanced detail when 'a uniformed member of the service may approach and question persons who may be violating Housing Authority rules and regulations, including potentially unauthorized persons found in Housing Authority buildings.'"

I.O. 23 was issued after the commencement of this suit, but plaintiffs assert that their claims "challenge[ ] generally Defendants' overall vertical patrol policies and trespass enforcement practices, including I.O. 23." Plaintiffs have accordingly demanded that the City produce, as part of its discovery obligations, "any drafts, correspondence or memoranda concerning the development and implementation of Interim Order 23" and "any drafts, correspondence or memoranda concerning the development and implementation of the corresponding training curriculum, as well as all revisions to the curriculum."

Davis v. City of N.Y., 10 Civ. 699 (SAS), 2011 WL 1742748 at *1-*2 (S.D.N.Y. May 5, 2011)(footnotes omitted).

Two categories of documents concerning the revisions to P.G. 212-60 are at issue here: "(1) legal memoranda and NYPD Legal Bureau analysis of vertical patrols in NYCHA developments; [and] (2) correspondence and draft revisions to PG 212--60" ("Category One" and Category Two," respectively) (Letter Brief of Tonya Jenerette, counsel to the City, dated Mar. 15, 2011 ("City's Letter Brief"), at 3). In support of its assertions of privilege, the City submitted a declaration from S. Andrew Schaffer, dated March 15, 2011, two privilege logs dated February 25, 2011 and April 7, 2011, and a copy of P.G. 212-60 and I.O. 23 (see City's Letter Brief and attached exhibits) .

Judge Scheindlin, in her May 5 Order addressing the City's assertion of the deliberative process privilege, held that "[o]n the whole, the privilege logs submitted by the City are insufficiently detailed to allow the Court to assess the legitimacy and scope of its assertion of the deliberative process privilege." Davis v. City of N.Y., supra, 2011 WL 1742748 at *3. Judge Scheindlin noted "two major deficiencies in the City's logs that render them inadequate. First, one or more columns [are] marked 'N/A' for a significant number of entries. Second, the City too often employs vague, confusing, or conclusory descriptions in the 'Subject' column." Davis v. City of N.Y., supra, 2011 WL 1742748 at *3. Judge Scheindlin noted that, although "[t]he use of "'N/A' may in certain circumstances be appropriate, [when] combined with a vague description of the subject matter of the document, [the index submitted by defendants] leave[s] the Court unable to assess" whether the assertion of a privilege, as to a given document, is proper. Davis v. City of N.Y., supra, 2011 WL 1742748 at *3.

Next, Judge Scheindlin noted that documents that fall within Categories One and Two "are most likely" privileged pursuant to the deliberative process privilege. However, "to the extent that documents in Category One do not relate to the revisions of P.G. 212-60 [which is the operative policy under deliberation during the relevant period], but rather constitute analysis of NYPD's past policy and practice of vertical patrols in NYCHA developments, they cannot be considered predecisional," and would not, therefore, be protected by the deliberative process privilege. Davis v. City of N.Y., supra, 2011 WL 1742748 at *5. Accordingly, Judge Scheindlin ordered the City to "revise its privilege logs [and provide] more detailed information about what is actually contained in the documents subsumed under Category One . . . so that plaintiffs and the Court can assess the propriety of the assertions of privilege."*fn2 Davis v. City of N.Y., supra, 2011 WL 1742748 at *5.

Finally, Judge Scheindlin noted that "[c]ertain entries in the [City's privilege] log reflect a blatant abuse of the assertion of privilege," and issued the following instruction to the City:

Thus while I do not rule here on the applicability of the attorney-client . . . privilege[] as [it has] not been briefed, the City is cautioned to reassess its assertion of all privileges carefully prior to resubmitting the logs. If a random in camera review of a selected group of documents on the privilege logs reveals that the assertion of privilege was baseless, the Court will not hesitate to find that the City has waived any claim of privilege with regard to the remainder of the documents.

Davis v. City of N.Y., supra, 2011 WL 1742748 at *4.

B. The Present

Discovery Dispute

Pursuant to Judge Scheindlin's May 5 Order, the City submitted a revised privilege log on May 27, 2011, as well as a "redlined" version illustrating the revisions made to the origi- nal privilege log (Amended Declaration of Jon Hee Lee in Support of Plaintiffs' Motion to Compel Production of Documents, dated Oct. 26, 2011 ("Lee Decl.")(Docket Item 122), at ¶¶ 3-4). 125 documents are at issue in this motion; the City asserts they are protected by the deliberative process privilege, the attorney-client privilege, or both (see Exhibit J to the Declaration of Judson Vickers in Opposition to Plaintiffs' Motion to Compel Production of Documents, dated Nov. 9, 2011 ("Vickers Decl.")(Docket Item 128)).*fn3

The City asserts the deliberative process privilege as to 107 documents; the plaintiffs challenge the assertion of this privilege as to 19 of these documents, on the grounds that the City has not established, through the information provided in the revised privilege log, or through other evidence, that these documents are predecisional and deliberative --- the two essential elements of the deliberative process privilege. The plaintiffs also argue that all 107 documents withheld on the basis of the deliberative process privilege should be produced because the plaintiffs' need for the documents, outweighs the publics' interest in nondisclosure (Exhibit J to Vickers Decl.).

The City also asserts the attorney-client privilege as to all 125 documents in issue; the plaintiffs challenge that assertion with respect to 124 of those documents, either on the ground that the City has provided insufficient information in its revised privilege log to support the assertions of privilege, or on the ground that the information in the privilege log ...


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