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Jabbar Collins v. the City of New York

July 23, 2012

JABBAR COLLINS, PLAINTIFF,
v.
THE CITY OF NEW YORK, ET AL.,
DEFENDANTS.



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

MEMORANDUM AND ORDER

Defendants move to compel the production of documents, and plaintiff moves for a protective order. I heard oral argument on May 24, 2012. (See Transcript of Oral Argument, dated May 24, 2012 ("Tr.").) For the reasons stated below, defendants' motion is granted in part and denied in part.*fn1

BACKGROUND

Plaintiff Jabbar Collins ("plaintiff" or "Collins") commenced this civil action in February 2011. The 106-page complaint seeks damages for wrongful arrest, prosecution, conviction, and imprisonment. (See generally Complaint, dated Feb. 15, 2011 ("Compl.").)

On June 8, 2010, the Honorable Dora L. Irizarry, United States District Judge, with the consent of all parties, vacated plaintiff's 1995 murder conviction and ordered the indictment dismissed with prejudice, based on evidence that prosecutors in the Brooklyn District Attorney's office had wrongfully withheld a key witness's recantation. (See Final Judgment Order in 08 CV 1359 (DLI)(CLP), dated June 8, 2010 ("Final Judgment Order").) The criminal case against Collins arose out of the February 1994 shooting death of Abraham Pollack, a rabbi and the landlord of a residential building in Williamsburg, Brooklyn. The recanting witness was Edwin Oliva, who made a statement to police*fn2 in March 1994 (when he was arrested for an armed robbery that had occurred two days earlier, in the building Pollack owned and where he was shot and killed) and later testified before the grand jury and at Collins's criminal trial. The police used Oliva's March 1994 statement to arrest plaintiff and initiate criminal proceedings against him. According to plaintiff, Oliva's statement was coerced, and his cooperation earned him protective custody, low bail, and a lenient plea bargain. (See Compl. ¶¶ 60, 62.)

It is undisputed that approximately two months prior to Collins's criminal trial, defendant Vincent Gerecitano, an N.Y.P.D. detective, received a telephone call from someone in the Brooklyn District Attorney's office advising that Oliva was denying making the March 1994 statement to police and was denying the truth of the statement. (See Final Judgment Order.) Because Oliva's pre-trial statements constituted Brady material that had not been disclosed to Collins, the City consented to granting the writ of habeas corpus before Judge Irizarry. According to defendants, Detective Gerecitano later met with Oliva at the D.A.'s office, after which Oliva admitted that he made the statement and that it was true. (See Letter of Arthur G. Larkin, Esq., dated Mar. 27, 2012 ("Larkin Ltr."), at 2, Ex. D.)

The other witness who figures in defendants' motion is Angel Santos, who also testified at Collins's trial and who has never recanted his testimony. (Tr. at 40-41.) Santos did not claim to have seen the shooting, but he identified Collins as the man he saw running past the furniture store where Santos worked immediately after the shooting. (See Letter of Arthur G. Larkin, Esq., dated Apr. 9, 2012, at 5.) According to plaintiff, both Santos and Oliva were heavy drug users whose credibility should have been called into question from the outset. Plaintiff also maintains that Oliva was going through withdrawal during his police interrogation and was coerced into testifying against Collins. (See Compl. ¶¶ 126, 149.)

Oliva recanted his prior statements in an affidavit that he signed on January 20, 2006 while in custody on Rikers' Island, in the presence of lawyers Roland Acevedo and Joel Rudin. (Larkin Ltr., Ex. I.)*fn3 Defendants claim that "plaintiff, with the assistance of his attorneys, may have colluded with" Oliva to create this affidavit. (Larkin Ltr. at 2.)*fn4

Defendants now seek three categories of documents: (1) documents plaintiff claims are privileged or protected by the attorney work product doctrine, (2) contact information for Oliva, Santos, and other relevant witnesses, and (3) unredacted attorney time records for Roland Acevedo and Joel Rudin. I will address each category in turn.

1. Documents Plaintiff Claims Are Privileged or Work Product Defendants seek to compel production of documents that reflect communications between (1) plaintiff's current attorney, Joel Rudin, and certain non-parties (including Oliva and Santos), and (2) plaintiff or his agents and Roland Acevedo, an attorney who represents or represented Oliva.

After his conviction, Collins retained Rudin and Acevedo*fn5 to represent him, and in this lawsuit he seeks to recover his legal fees as part of his damages. Acevedo performed work for Collins from April 2004 to September 2005; in January 2006 he became an attorney for Oliva, and the affidavit Oliva signed on January 20, 2006 identifies Acevedo as Oliva's lawyer. It is undisputed that, at some point, Collins paid Acevedo $300 for representing Oliva.

According to defendants, this arrangement -- whereby Acevedo represented both Collins and Oliva, and Collins paid Acevedo to represent a witness who had testified against him at trial -- violated the Rules of Professional Conduct*fn6 concerning conflicts of interest "and suggests improper collusion among them to create Oliva's affidavit." Defendants argue that this makes all of plaintiff's communications with Acevedo, and all of Rudin's communications with Acevedo, Oliva, and any non-party witness, discoverable. Specifically, defendants seek unredacted copies of the following documents on plaintiff's privilege log:

● All documents listed on pages 1--2 of the privilege log (with the exception of the last two on page 2), reflecting communications between Acevedo and Collins in 2004 and 2005. (Larkin Ltr., Ex. L.) ● Oliva's draft witness statement, dated January 17, 2011, which was authored by Rudin.*fn7

● Documents entitled "Memorandum of Interview" and "Handwritten Notes of Witness Interview," authored by Rudin.*fn8 ● Document entitled "Draft Witness Statement" authored by Rudin. This is an earlier draft of the statement Rudin obtained from Oliva on January 17, 2011, and counsel claims that it is work product. ● Correspondence from Collins to Acevedo and Rudin dated November 22, 2005 (about two months before Oliva signed the recanting witness affidavit).*fn9 ‚óŹ Three e-mails between Rudin and Acevedo, dated March 17 and 22, 2006. (March 17, 2006, when 2 of those e-mails were ...


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