United States District Court, S.D. New York
AUTOMOBILE CLUB OF NEW YORK, INC., d/b/a AAA New York, and AAA NORTH JERSEY, INC., Plaintiff,
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendants.
MEMORANDUM OPINION and ORDER
RICHARD K. EATON, District Judge.[*]
Before the court are the objections, made pursuant to Federal Rule of Civil Procedure 72(a), of plaintiffs Automobile Club of New York, Inc., doing business as AAA New York, ("AAA New York") and AAA North Jersey, Inc. ("AAA North Jersey") (together, "AAA" or "plaintiffs"), regarding portions of the Opinion and Order of Magistrate Judge Pitman dated June 4, 2014 ("June 4 Opinion"). See Pls.' Objections to the Magistrate Judge's Op. and Order dated June 4, 2014 (ECF Dkt. No. 104) ("Pls.' Br."); Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., No. 11 Civ. 6746(RKE)(HBP), 2014 WL 2518959 (S.D.N.Y. June 4, 2014) (" AAA v. Port Authority II "). In his opinion, Magistrate Judge Pitman denied AAA's application for an order compelling the production of 339 documents by the Port Authority of New York and New Jersey (the "Port Authority" or "defendant"). See AAA v. Port Authority II, 2014 WL 2518959, at *11. Defendant disputes AAA's objections. See Def.'s Opp'n to Pls.' Objections to the Magistrate Judge's Op. and Order Dated June 4, 2014 (ECF Dkt. No. 109). Oral argument was heard on October 29, 2014. The court has now considered AAA's objections and, for the reasons set forth below, finds them to be without merit and, therefore, affirms the June 4 Opinion.
AAA New York and AAA North Jersey are not-for-profit corporations that claim to represent the interests of nearly two million member drivers. The Port Authority is a bi-state governmental agency, created by an interstate compact between the States of New York and New Jersey, that operates facilities in and around New York City, including four interstate bridges, two interstate tunnels, the interstate Port Authority Trans-Hudson railroad, three bus terminals, two truck terminals, seven marine terminals, four airports, two heliports, and the sixteen-acre World Trade Center site.
The Port Authority is authorized to collect tolls at its bridge and tunnel facilities. On August 19, 2011, its Board of Commissioners met and approved a toll increase schedule. See Aff. of Michael Fabiano, Ex. F at 13 (ECF Dkt. No. 12-6); Compl., Ex. G (ECF Dkt. No. 1-7). Thereafter, on September 27, 2011, AAA began this suit, alleging, generally, that the toll increases imposed on certain Port Authority facilities constituting the Integrated Transportation Network violated the dormant Commerce Clause of the United States Constitution and the Federal-Aid Highway Act of 1987 (the "Highway Act"). Compl. ¶ 1 (ECF Dkt. No. 1). The contested documents relate to the various reasons considered by the Port Authority for increasing the tolls, but not how the revenue from the tolls was spent.
Pursuant to Rule 26 of the Federal Rules of Civil Procedure and Local Civil Rule 26.2(c), the Port Authority provided AAA with a privilege log that identified the 339 documents withheld pursuant to the deliberative process privilege on a categorical basis. See Decl. of Kevin P. Mulry ("Mulry Decl."), Ex. B (ECF Dkt. No. 92-2). For each of the defined categories of documents, the privilege log listed the "Date, " "Doc Type, " "Authors, " "Recipients, " "Privilege Description, " and "Privilege Reason." See Mulry Decl., Ex. B.
AAA then claimed, via letter to Magistrate Judge Pitman, that the privilege log was insufficiently detailed and sought an order requiring the Port Authority to amend the log and provide more information about the withheld documents. See Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., 297 F.R.D. 55, 57-58 (S.D.N.Y. 2013) (" AAA v. Port Authority I ") (citation omitted). In an Opinion and Order dated May 8, 2013 (the "May 8 Order"), Magistrate Judge Pitman ordered the Port Authority to supplement its privilege log "by providing the number of individuals that comprise the Authors' and Recipients' of each of the eight challenged categories, " as well as "the number of documents encompassed within each of the eight challenged categories, " and by specifically identifying, by name and title, certain individuals within each category. Id. at 63, 64. AAA did not move to have the May 8 Order reconsidered, nor did it appeal the order to the court. See AAA v. Port Authority II, 2014 WL 2518959, at *7. Subsequently, the Port Authority submitted a revised privilege log with a supporting declaration made by Patrick J. Foye (the "Foye Declaration"), the Executive Director of the Port Authority. Mulry Decl., Ex. A ("Supplemental Privilege Log"), Ex. C (ECF Dkt. Nos. 92-1, 92-3).
On August 6, 2013, AAA made a further motion to compel production of the 339 documents withheld pursuant to the deliberative process privilege, in which it also requested that Magistrate Judge Pitman review the documents in camera "[i]f there is any question as to the applicability of the privilege or the balancing of factors...." Pls.' Mem. of Law in Supp. of Mot. to Compel Produc. of Documents Withheld Pursuant to the Deliberative Process Privilege 3 (ECF Dkt. No. 93) ("Mot. to Compel Mem."). In the June 4 Opinion, Magistrate Judge Pitman denied AAA's motion to compel in its entirety. See AAA v. Port Authority II, 2014 WL 2518959, at *11. These objections followed.
I. LEGAL FRAMEWORK
A. Rule 72(a)
When considering objections to an order issued by a magistrate judge concerning a nondispositive matter, a Court shall "modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1)(A); Thompson v. Keane, No. 95 Civ. 2442 (SHS) (AJP), 1996 WL 229887, at *1 (S.D.N.Y. May 6, 1996). An order "is clearly erroneous' only when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Thompson, 1996 WL 229887, at *1 (quoting Palmer v. Reader's Digest Ass'n, Inc., No. 84 Civ. 8397 (CSH), 1995 WL 686737, at *1 (S.D.N.Y. Nov. 20, 1995)); see also Siao-Pao v. George, No. 90 Civ. 5376 (PKL), 1992 WL 236184, at *2 (S.D.N.Y. Sept. 10, 1992). An order is "contrary to law" "when it fails to apply or misapplies relevant statutes, case law or rules of procedure." Thompson, 1996 WL 229887, at *1 (quoting SEC v. Thrasher, No. 92 CIV. 6987 (JFK), 1995 WL 456402, at *12 (S.D.N.Y. Aug. 2, 1995)) (internal quotation marks omitted). "[A] magistrate judge's resolution of a discovery dispute deserves substantial deference." Siao-Pao, 1992 WL 236184, at *2 (citations omitted); see also Thompson, 1996 WL 229887, at *1.
B. The Deliberative Process Privilege
The 339 documents that AAA seeks were withheld by the Port Authority pursuant to its claim that they are covered by the deliberative process privilege. As Magistrate Judge Pitman noted in his June 4 Opinion, the purpose of the deliberative process privilege is to promote sound "agency decisions by preserving and encouraging candid discussion among officials." AAA v. Port Authority II, 2014 WL 2518959, at *3 (quoting Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005)); see also MacNamara v. City of New York, 249 F.R.D. 70, 77 (S.D.N.Y. 2008). Documents gain the privilege if they are both (1) "predecisional" and (2) "deliberative." Nat'l Council of La Raza, 411 F.3d at 356 (citations omitted) (quoting Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999)).
A document is "predecisional" "when it is prepared in order to assist an agency decisionmaker in arriving at his decision." Tigue v. U.S. Dep't of Justice, 312 F.3d 70, 80 (2d Cir. 2002) (quoting Grand Cent. P'ship, 166 F.3d at 482) (internal quotation marks omitted).
"A document is deliberative' when it is actually... related to the process by which policies are formulated.'" Grand Cent. P'ship, 166 F.3d at 482 (alteration in original) (quoting Hopkins v. U.S. Dep't of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991)) (internal quotation marks omitted). In particular, "[d]raft documents, by their very nature, are typically predecisional and deliberative. They reflect only the tentative view of their authors; views that might be altered or rejected upon further deliberation either by their authors or by superiors.'" Exxon Corp. v. Dep't of ...