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

June 4, 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

In an Opinion and Order dated February 27, 2012 ("Feb. 27, 2012 Order")(Docket Item 153), familiarity with which is assumed, I granted in part, and denied in part, plaintiffs' motion seeking to compel the production of certain documents that defendant City of New York (the "City") was withholding on the basis of the attorney-client and the deliberative-process privileges (Docket Item 119). Davis v. City of N.Y., 10 Civ. 699 (SAS)(HBP), 2012 WL 612794 (S.D.N.Y. Feb. 27, 2012).

The City requests reconsideration of certain portions of the Feb. 27, 2012 Order; plaintiffs oppose the City's request for reconsideration and seek reconsideration of a different portion of the Feb. 27, 2012 Order. For the reasons set forth below, both requests for reconsideration are denied in all respects.

II. Facts

A. Background

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 the allegedly unlawful trespass enforcement policies and practices of the defendants, the City and the New York City Housing Authority ("NYCHA"), working together with the New York City Police Department ("NYPD").*fn1

At the time this suit was commenced, the relevant NYPD policy was reflected in Section 212-60 of the NYPD Patrol Guide ("P.G. 212-60"). Because of complaints and litigation, S. Andrew Schaffer, the NYPD Deputy Commission for Legal Matters undertook the task of revising P.G. 212-60. After working together with high-ranking NYPD personnel and attorneys from the New York City Corporation Counsel's office, P.G. 212-60 was replaced by Interim Order number 23 ("I.O. 23").

Two categories of documents concerning the revisions to P.G. 212-60 were at issue in the Feb. 27, 2012 Order: "(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).

The Honorable Shira A. Scheindlin, United States District Judge, in an Order, dated May 5, 2011 ("May 5, 2011 Order") found several deficiencies in the City's privilege logs and ordered the City to submit revised logs. Davis v. City of N.Y., 10 Civ. 699 (SAS), 2011 WL 1742748 (S.D.N.Y. May 5, 2011). 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.

Pursuant to Judge Scheindlin's May 5, 2011 Order, the City submitted a revised privilege log on May 27, 2011, as well as a "redlined" version illustrating the revisions made to the original privilege log. On October 21, 2011, plaintiffs moved to compel the production of 125 documents which the City asserted were 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)).*fn2

The City asserted the deliberative-process privilege as to 107 documents; the plaintiffs challenged the assertion of this privilege as to 19 of these documents, on the ground that the City had not established, through the information provided in the revised privilege log, or through other evidence, the applicability of the privilege. The plaintiffs also argued that all 107 documents withheld on the basis of the deliberative-process privilege should be produced because the plaintiffs' need for the documents, outweighed the publics' interest in nondisclosure.

The City also asserted the attorney-client privilege as to all 125 documents; the plaintiffs challenged 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 did not suggest a communication to a client containing legal advice.

In my Feb. 27, 2012 Order, I first found that the descriptions in the privilege log with respect to 18 of the 19 documents*fn3 withheld on the basis of the deliberative-process privilege, and challenged by plaintiffs, were insufficient to show the applicability of the privilege. Davis v. City of N.Y., supra, 2012 WL 612794 at *6. I also held that the City had waived the deliberative-process privilege as to these documents by its failure to comply with Judge Scheindlin's May 5, 2011 Order directing it to revise the privilege log to address a deficiency in the descriptions. Davis v. City of N.Y., supra, 2012 WL 612794 at *6. I further found the dispute to be moot with respect to the remaining putative deliberative-process ...

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