United States District Court, S.D. New York
COHEN & FITCH LLP, By: Gerald M. Cohen, Esq., Joshua P. Fitch, Esq., 225 Broadway, Suite 2700, New York, NY 10007, THE LAW OFFICES OF JON L. NORINSBERG, ESQ. By: Jon L. Norinsberg, Esq. 225 Broadway, Suite 2700, New York, NY 10007, QUINN EMANUEL URQUHART & SULLIVAN, LLP, By: Stephen R. Neuwirth, Esq., Steig D. Olson, Esq., Elinor C. Sutton, Esq., 51 Madison Avenue, New York, NY 10010, Attorneys for the Plaintiffs.
ZACHARY W. CARTER, By: Steven M. Silverberg, Esq., Qiana C. Smith-Williams, Esq., CORPORATION COUNSEL OF THE CITY OF NEW YORK, 100 Church Street, New York, NY 10007, Attorneys for the Defendant.
ROBERT W. SWEET, District Judge.
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") have requested access to inadvertently disclosed documents, namely the New York City Police Department Briefing Book for fiscal year 2013 and Topics of the City Council Book (together, the "Books"). 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 asserted privilege over the Books.
Upon the conclusions set forth below, Plaintiffs' request is denied.
Background & Prior Proceedings
The facts and prior proceedings in this action are generally set forth in a prior decision and order of this Court dated April 23, 2012 granting Plaintiffs' motion for class certification. See Stinson v. City of New York, 282 F.R.D. 360, 365 (S.D.N.Y. 2012). Prior proceedings relating to the instant assertion of privilege are set forth in a prior decision and order of this Court dated October 10, 2014 denying Plaintiffs request to retain the Books in their possession for the purposes of litigating the claim of privilege. (See Dkt. No. 173.) Familiarity with these opinions is assumed.
Federal Rule of Civil Procedure 26 states that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.. " Fed.R.Civ.P. 26(b)(1). Rule 26 also provides that when a party withholds documents on the grounds of privilege, that party must both "expressly make the claim" and "describe the nature of the documents, communications, or tangible things not produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed.R.Civ.P. 26(b)(5)(A). "The burden is on the party claiming the protection of a privilege to establish those facts that are the essential elements of the privileged relationship." von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987) (citations omitted); see also In re The City of New York, 607 F.3d 923, 944-45 (2d Cir. 2010) ("the party asserting the law enforcement privilege bears the burden of showing that the privilege applies to the documents in question") (citations omitted).
The Books Are Subject to Deliberative Privilege
The deliberative process privilege is a subspecies of work-product privilege that "covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). The deliberative process privilege extends to documents that are "(1) predecisional, ' i.e., prepared in order to assist an agency decisionmaker in arriving at his decision, ' and (2) deliberative, ' i.e., actually... related to the process by which polices are formulated.'" Brennan Ctr. for Justice at NYU Sch. of Law v. U.S. Dep't of Justice, 697 F.3d 184, 194 (2d Cir. 2012) (citation omitted). The purpose of the deliberative process privilege is to "enhance the quality of agency decisions, ' by protecting open and frank discussion among those who make them within the Government." Klamath, 532 U.S. at 8-9 (internal citations omitted). The privilege is based on the "obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news...." Tigue v. United States Dep't of Justice, 312 F.3d 70, 76 (2d Cir. 2002); see also Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). Courts afford "considerable deference" to the judgment of the agency, since the agency is in the best position to know how to prevent injuring the quality of agency decision-making. NAACP Legal Def. & Educ. Fund, Inc. v. United States HUD, No. 07 Civ 3378 (GEL), 2007 WL 4233008, at *10 (S.D.N.Y. Nov. 30, 2007) (citation omitted).
A document is predecisional when it is "prepared in order to assist an agency decisionmaker in arriving at his decision." Grand Cent. P'ship v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999) (internal quotation marks and citations omitted). Such documents may include: "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Id.
A document is deliberative if it is:
"actually... related to the process by which policies are formulated.'" Factors used to determine whether a document is deliberative include "whether the document (i) formed an essential link in a specified consultative process, (ii) reflects the personal opinions of the writer rather than the policy of the agency, and (iii) if ...