United States District Court, S.D. New York
COHEN & FITCH LLP Gerald M. Cohen, Esq., Joshua P. Fitch, Esq., New York, NY, THE LAW OFFICES OF JON L. NORINSBERG, ESQ. Jon L. Norinsberg, Esq., New York, NY, QUINN EMANUEL URQUHART & SULLIVAN, LLP Stephen R. Neuwirth, Esq., Steig D. Olson, Esq., New York, NY, Attorneys for the Plaintiffs.
ZACHARY W. CARTER CORPORATION COUNSEL OF THE CITY OF NEW YORK Qiana C. Smith-Williams, Esq., New York, NY, Attorneys for the Defendants.
ROBERT W. SWEET, District Judge.
Defendants City of New York and Raymond Kelly, the Commissioner of the New York Police Department ("NYPD, " together with the City of New York, "Defendants") have moved by order to show cause to compel plaintiffs Sharif Stinson, Mariam Farnum, Charlene Finley, Ryburn Walkes, Jamel Towe, Christian Dudley, Jocelyn Ferdinand, Gary Shaw, Michael Bennett, Chanel Meausa, David Thompson, Joseph Sarpong, Jeremy Thames, Sean Pettigrew, Leander Griffin, Brian Morris, Mica Ancrum, Ricardo Jones, Victor Breland, and Michael Riddick (collectively, "Plaintiffs") to immediately return the allegedly privileged CD Rom diskette ("CD") consisting of inadvertently disclosed documents produced by the City, namely, the New York City Police Department Briefing Book for fiscal year - and Topics of the City Council Book (the "Documents") and any copies or portions of copies thereof. The parties have provided additional briefing on the question of whether Plaintiffs may retain the Documents solely for the purpose of litigating the claim of privilege.
Based on the facts and conclusions set forth below, Plaintiffs are directed to return the Documents and any copies or copied portions thereof.
Background and Prior Proceedings
Plaintiffs' second set of document requests (Request Numbers 75 through 79) required Defendants to review a large volume of electronically stored information containing hundreds of thousands of documents for responsive information. Defendants produced certain documents on September 2, 2014, the entirety of which Plaintiffs' counsel promptly reviewed. As part of the September 2, 2014 production, two documents were inadvertently produced - the New York City Police Department Briefing Book for fiscal year 2013 and Topics Book. Defendants produced heavily redacted versions of the Documents at the same time that the Documents containing allegedly privileged information were mistakenly produced.
Upon realizing that the unredacted Documents had been produced, defense counsel advised Plaintiffs by letter on September 16, 2014 (the "September 16 Letter") that they had inadvertently disclosed privileged information and invoked the protections afforded under Rule 26 (b) (5) (B)of the Federal Rules of Civil Procedure and Rule 502(d) of the Federal Rules of Evidence. At the same time, Defendants put Plaintiffs' counsel on notice that the Documents contained attorney work product, attorney-client communications, and material that was covered by the law enforcement privilege. Accordingly, Defendants requested that (1) Plaintiffs immediately return the CD that the Documents were produced on, as well as, any and all copies of the documents Plaintiffs may have made, and (2) Plaintiffs destroy any electronically maintained versions of the Documents.
Plaintiffs confirmed that the attorneys working on the matter had "been instructed that until they are told differently, they should treat [the documents] as privileged, and should not review, circulate, or otherwise use the document for any purpose." (Defs.' Mem. 2.) Plaintiffs agreed to return the original CD Rom diskette and all but one copy of the Documents, contending that they were allowed to retain a copy of the Documents in order to review them for privilege.
Defendants filed their order to show cause on September 22, 2014. At a hearing on the motion on October 1, 2014, the Court requested briefing on Plaintiffs' contention that they can properly retain and review the Documents for purposes of opposing Defendants' privilege claim while directing Plaintiffs' counsel to sequester the CD. (See 10/01/2014 Ct. Tr. at 12:15-19.)
The Court may compel a party to return inadvertently disclosed documents if it finds that the producing party made reasonable efforts to screen out privileged documents and did not intend to produce those that were produced inadvertently. Fed.R.Civ.P. 26 (b) (5) (B); see also Fuller v. Interview, Inc., No. 07 Civ. 5728, 2009 WL 3241542, *3-5 (S.D.N.Y. Sept. 30, 2009); Synergetics USA, Inc. v. Alcon Labs. Inc., No. 08 Civ. 3669 , 2009 WL 2016795, *1-2 (S.D.N.Y. July 9, 2009).
Rule 502 of the Federal Rules of Evidence and Rule 26 (b) (5) (B) of the Federal Rules of Civil Procedure reinforce the protection that extends to privileged documents produced inadvertently. Rule 502(b) specifies that production of a privileged document does not constitute a waiver of the privilege if the privilege was "inadvertent, " the privilege holder "took reasonable steps to prevent disclosure, " and the privilege holder promptly took reasonable steps to rectify the error. Rule 26(b) (5) (B) provides:
If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the ...