United States District Court, E.D. New York
HAMID HASSAN RAZA, MASJID AL-ANSAR; ASAD DANDIA; MUSLIMS GIVING BACK; MASJID AT-TAQWA; and MOHAMMAD ELSHINAWY, Plaintiffs,
CITY OF NEW YORK; MICHAEL R. BLOOMBERG, in his official capacity as Mayor of the City of New York; RAYMOND W. KELLY, in his official capacity as Police Commissioner for the City of New York; and DAVID COHEN, in his official capacity as Deputy Commissioner of Intelligence for the City of New York, Defendants
[Copyrighted Material Omitted]
For Hamid Raza, Masjid Al-Ansar, Asad Dandia, Muslims Giving Back, Masjid At-Taqwa, Mohammad Elshinawy, Plaintiffs: Arthur Nelson Eisenberg, LEAD ATTORNEY, Arthur N. Eisenberg, New York, NY; Ashley Marie Gorski, Hina Shamsi, Nusrat Jahan Choudhury, LEAD ATTORNEYS, American Civil Liberties Union, New York, NY; Diala Shamas, LEAD ATTORNEY, CUNY School of Law, Ny, NY; Mariko Hirose, LEAD ATTORNEY, New York Civil Liberties Union, New York, NY; Patrick Christopher Toomey, LEAD ATTORNEY, American Civil Liberties Union Foundation, New York, NY; Ramzi Kassem, LEAD ATTORNEY, Main Street Legal Services, Inc., Cuny School Of Law, Long Island City, NY.
For City of New York, Michael R. Bloomberg, in his official capacity as Mayor of the City of New York, David Cohen, in his official capacity as Deputy Commissioner of Intelligence for the City of New York, Defendants: Peter G. Farrell, LEAD ATTORNEY, NYC Office of Corporation Counsel, New York, NY; Alexis L. Leist, New York City Law Department, Special Federal Litigation Division, New York, NY; Cheryl Leah Shammas, NYC LAW DEPT, New York, NY.
For Raymond W. Kelly, in his official capacity as Police Commissioner for the City of New York, Defendant: Alexis L. Leist, New York City Law Department, Special Federal Litigation Division, New York, NY; Cheryl Leah Shammas, NYC LAW DEPT, New York, NY.
MEMORANDUM & ORDER
PAMELA K. CHEN, United States District Judge.
Plaintiffs move for expedited discovery in support of an anticipated motion for a preliminary injunction. (Dkt. 20.) For the reasons set forth herein, Plaintiffs' motion is GRANTED, in part, and DENIED, in part, as follows: (1) Plaintiffs' Document Request #1 is granted, except with respect to potential redactions by Defendants; (2) Plaintiffs' Document Request #2 is granted to the extent that the investigations referenced therein relate to Plaintiffs; (3) Plaintiffs' Document Request #3 is granted, with modifications; (4) Plaintiffs' Request # 4 is granted, with modifications; (5) Plaintiffs' Requests #5 through #9 are denied in their entirety; and (6) Plaintiffs' sole interrogatory, which contains three subparts, is granted. In addition, Plaintiffs' request for expedited discovery, pursuant to their proposed schedule, is DENIED. The schedule that will govern the discovery permitted herein is set forth at the conclusion of this Memorandum and Order.
Plaintiffs are three Muslim individuals, two mosques, and a non-profit Muslim organization. They allege that Defendants have violated, and continue to violate, their constitutional rights through unlawful, " suspicionless" surveillance and investigation conducted by the New York Police Department (" NYPD" ) pursuant to its purported " Muslim surveillance program." (Dkt. 1 at 1.) Plaintiffs' complaint sets forth four causes of action: (1) violation of the Equal Protection Clause of the Fourteenth Amendment; (2) violation of the Free Exercise Clause of the First Amendment; (3) violation of the Establishment Clause of the First Amendment; and (4) violation of the right to freely exercise their religion under Article I § 3 of the New York State Constitution. (Dkt. 1 at 30-32.)
On September 10, 2013, one day after filing their answer, Defendants submitted a request for bifurcated discovery to the Honorable Joan M. Azrack, with the first phase of discovery being limited to whether Plaintiffs have standing to sue and whether they have suffered a constitutional violation. (Dkt. 11 at 2.) According to Defendants, the second phase, to which the parties would proceed if Plaintiffs established standing and a constitutional violation, would concern " the NYPD's general investigative policies and practices." (Dkt. 11 at 2.) Defendants' motion for bifurcated
discovery was principally based on the arguments that Plaintiffs would be unable to make either showing, and that non-bifurcated discovery would " open up innumerable discovery disputes regarding the law enforcement privilege and waste judicial resources." (Dkt. 11 at 2.) Defendants advised Judge Azrack that, at the conclusion of the initial phase of bifurcated discovery, they would move to dismiss this action based on a lack of standing and the absence of any constitutional violation. (Dkt. 11 at 5.)
On September 11, 2013, Plaintiffs filed a response in which they opposed Defendants' request for bifurcated discovery and informed Judge Azrack that Plaintiffs planned to seek leave to move for a preliminary injunction and for expedited discovery with respect to that motion. (Dkt. 12.)
On September 12, 2013, Plaintiffs filed a pre-motion conference request with this Court regarding the preliminary injunction motion and expedited discovery. (Dkt. 13.) Plaintiffs indicated that their motion would seek to have the Court: " (1) order the NYPD to segregate all existing records related to Plaintiffs' religious identity, speech, beliefs, and practices that are not supported by any individualized suspicion of Plaintiffs' wrongdoing, and prohibit any use or dissemination of such records; and (2) enjoin the NYPD from any investigation of Plaintiffs that is based solely or predominantly on their religion." (Dkt. 13 at 2.)
On September 12, 2013, Judge Azrack held a conference with the parties regarding Defendants' request for bifurcated discovery. (Dkts. 14, 15.) Judge Azrack reserved judgment on the bifurcation issue, and directed the parties to confer in the meantime regarding a confidentiality agreement to govern the exchange of documents and information during discovery, to which the parties have not yet agreed. (Dkt. 15 at 5-6; Dkt. 19.)
On September 19, 2013, Defendants submitted their opposition to Plaintiffs' request for a pre-motion conference on their proposed preliminary injunction motion and for expedited discovery. (Dkt. 18.)
On October 7, 2013, the Court held a pre-motion conference, during which the Court heard argument from the parties regarding Plaintiffs' request for expedited discovery. The Court set a briefing schedule to permit Defendants to object to the Plaintiffs' proposed discovery requests.
The next day, October 8, Plaintiffs filed their motion for expedited discovery, including their proposed interrogatory and document requests. (Dkt. 20.) Defendants filed their opposition on October 30, 2013. (Dkt. 23.) Plaintiffs submitted their reply on November 7. (Dkt. 27.)
Through their proposed expedited discovery requests, Plaintiffs seek a wide range of documents and information relating not only to the NYPD's surveillance and investigation of Plaintiffs, but the NYPD's investigative policies and activities relating to all Muslim individuals and organizations, and relating to all non -Muslim individuals and organizations, where the policy or activity is or was based on the individual's or organization's religious speech, beliefs, practices, and activities. (Dkts. 20-1, 20-2.)
Defendants' response, while not addressing Plaintiffs' motion on a request-by-request basis, broadly interposes objections based on lack of relevance, overbreadth, and undue burden. (Dkt. 23 at 1-3.) Defendants also emphasize the heightened law enforcement sensitivity of the information being sought by Plaintiffs. ( E.g., Dkt. 23 at 1.) In addition, Defendants argue that Plaintiffs have failed to meet the standard
justifying expedited discovery. (Dkt. 23 at 21.)
I. Standard for Expedited Discovery
The management of discovery, including the timing and scope of discovery, lies within the sound discretion of the Court. See In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69 (2d Cir. 2003) (" the federal rules give district courts broad discretion to manage the manner in which discovery proceeds" ); see also Metro. Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 891 (2d Cir. 1990) (" Where discovery is warranted, the court should exercise its inherent power to limit and expedite it." ); United Parcel Serv. of Am., Inc. v. The Net, Inc., 222 F.R.D. 69, 71 (E.D.N.Y. 2004) (" '[T]he revisions in Rule 26(b)(2) are intended to provide the court with broader discretion to impose additional restrictions on the scope and extent of discovery . . . .'" ) (citing Advisory Committee Notes to 1993 Amendment to Rule 26(b)(2)).
In deciding Plaintiffs' request for expedited discovery, the Court applies the " flexible standard of reasonableness and good cause" set out in Ayyash v. Bank Al-Madina, 233 F.R.D. 325, 326-27 (S.D.N.Y. 2005), which is regularly employed in this district and elsewhere. See, e.g., KeyBank, Nat'l Assoc. v. Quality Payroll Sys., Inc., 2006 WL 1720461, at *4 (E.D.N.Y. June 22, 2006); New York v. Mountain Tobacco Co., 953 F.Supp.2d 385, 2013 WL 3488262, at *3 (E.D.N.Y. July 11, 2013) (rejecting Notaro and applying the " reasonableness" test); Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241 (S.D.N.Y. 2012) (applying standard of " reasonableness and good cause" in determining expedited discovery request). However, even under this more flexible standard, the Court does not find that Plaintiffs have shown sufficient cause to justify expedited discovery or that Plaintiffs' proposed discovery schedule is reasonable, given the breadth of Plaintiffs' document requests and the likelihood of disputes over assertions of privilege by Defendants. ( See Dkt. 23 at 16-21.)
In support of their request for expedited discovery, Plaintiffs claim that the alleged harms they have suffered, and continue to suffer, as a result of Defendants' conduct have " grown significantly more acute" since the filing of Defendants' September 10th letter requesting bifurcated discovery (" September 10th Letter" ). (Dkt. 20-3 at 14-15.) In that letter, Defendants set forth some of the facts that allegedly prompted the NYPD's surveillance and investigation of Plaintiffs. (Dkt. 11.) Plaintiffs assert that as a consequence of Defendants' September 10th Letter, Plaintiffs' fear of discriminatory surveillance has " grown substantially, as has the stigmatizing effect of this surveillance on Plaintiffs within their communities." (Dkt. 20-3 at 15.)
Plaintiffs' claims of heightened fear and stigmatization, which are largely unsupported, do not demonstrate good cause warranting expedited discovery. Indeed, the allegations in Plaintiffs' complaint, as well as the documents they submitted in connection with their discovery requests, plainly demonstrate that Plaintiffs were well aware of the scope of the NYPD's
investigative activities relating to them, and more generally to the Muslim community in New York City, prior to Defendants' September 10th Letter and even before the filing of this lawsuit. (Dkt. 1 at 5-29; Dkt. 20-5.) Accordingly, the discovery granted herein will not be conducted pursuant to Plaintiffs' proposed timeline, but according to the schedule set forth at the conclusion of this Memorandum and Order, with modifications as may be determined appropriate by Judge Azrack.
II. Plaintiffs' Document Requests
The Court evaluates Plaintiffs' document requests under the reasonableness standard set forth above and is guided by the Federal Rules of Civil Procedure, particularly Rule 26. Rule 26 provides that the court:
On motion or on its own . . . must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
Rule 26(b)(2)(C)(iii) (emphasis added); see, e.g., In re Subpoena Issued to Dennis Friedman, 350 F.3d at 69 (noting that Rule 26(b)(2) permits a district court to limit discovery); Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 316 (S.D.N.Y. 2003) (" Rule 26(b)(2) imposes general limitations on the scope of discovery in the form of a 'proportionality test[.]'" ); Tucker v. Am. Int'l Grp., Inc., 281 F.R.D. 85, 91 (D. Conn. 2012) (" Under Rule 26(b)(2)(C), courts impose a proportionality test to weigh the interests of the parties to determine whether discovery, even if relevant, should be allowed to proceed." ); Lineen v. Metcalf & Eddy, Inc., 1997 WL 73763, at *2 (S.D.N.Y. Feb. 21, 1997) (" In determining the limits of discovery, [courts] must balance the plaintiff's need for the requested data against the burden imposed on the defendant." ) (collecting cases).
A. Request #1
Documents concerning Plaintiffs.
The documents requested by Plaintiffs in Request #1 clearly are relevant to their claims. In fact, Defendants have agreed to produce all documents and information in their possession regarding Plaintiffs. (Dkt. 24-1 at 11-14) (Defendants intend to produce all information that they have about Plaintiffs in discovery); (Dkt. 23 at 1-2) (" defendants' pending proposal for bifurcated discovery would provide all information regarding any investigation or surveillance of these six plaintiffs, and the reasons for those actions" ); (Dkt. 20-3 at 6) (" The parties appear to be in agreement that Plaintiffs are entitled to Intelligence Division documents concerning Plaintiffs themselves, whatever those documents may be formally labeled in the NYPD's files." ); (Dkt. 11 at 2.) The Court accordingly grants Request #1.
Plaintiffs raise two objections with respect to the scope of Defendants' responses to this request. (Dkt. 20-3 at 6-7.) First, Plaintiffs object to Defendants " narrowly defining what constitutes an 'investigation' or 'surveillance'" in deciding which documents are responsive to this request. (Dkt. 20-3 at 6.) The Court agrees. Defendants must construe this request to include as responsive all documents they have about or referencing Plaintiffs, however those documents are labeled or classified.
Second, while Plaintiffs seek documents specifically pertaining to themselves, if those documents also contain information regarding other subjects, Plaintiffs request that such information be deemed responsive, and disclosed, as well. (Dkt. 20-3 at 6-7.) Plaintiffs argue that the information about other subjects referenced in these documents could, for example, " give rise to an inference that any investigation of Plaintiffs was part of a broader program of unwarranted surveillance of Muslims." (Dkt. 20-3 at 6.) The Court denies, in part, this aspect of Request #1. The Court agrees that Plaintiffs' inclusion in documents referencing other Muslims who were investigated, possibly without reasonable suspicion or probable cause, could be probative of discriminatory intent. Accordingly, while the Court will permit Defendants to redact the names of non-Plaintiff subjects, these redactions must be accompanied by an indication of: (1) whether the subject was a Muslim individual or organization; and (2) whether the subject was at any time investigated or surveilled by the NYPD. However, even though identifying information may be redacted, information describing investigative and surveillance actions taken with respect to these non-Plaintiffs must be disclosed, unless the disclosure of this information would indirectly reveal the subject's identity or threaten to undermine an ongoing investigation.
B. Request #2
Documents concerning the following Investigations:
a. Preliminary Inquiry # 10/08;
b. Terrorism Enterprise Investigation # 01/03;
c. Terrorism Enterprise Investigation # 04/08.
To the extent documents sought by this request pertain to Plaintiffs, those documents are responsive and must be produced. To the extent these documents do not pertain to Plaintiffs, they need not be produced, ...