United States District Court, N.D. New York
SERVICES OF CENTRAL SAMUEL C. YOUNG, ESQ. NEW YORK -
SYRACUSE, Attorneys for Plaintiff
OF THE NEW YORK JOSHUA E. MCMAHON, ESQ. STATE ATTORNEY
GENERAL, Attorneys for Defendants
C. YOUNG, ESQ. JOSHUA T. COTTER, ESQ.
E. MCMAHON, ESQ.
MEMORANDUM-DECISION AND ORDER
D'Agoatino U.S. District Judge
bench trial of this action is scheduled to commence on
February 13, 2017. Presently before the Court is
plaintiff's motion for an order compelling defendants to
produce twelve documents/emails that were referenced during
the depositions of Gary Waldron and David
object to the production of the emails and assert the
following reasons for withholding the copies: (1)
unresponsive to Magistrate Judge's Text
Order; (2) protected by the "deliberate
process privilege;" (3) attorney work product privilege;
and (4) attorney client privilege.
deliberative process privilege [is] a sub-species 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." See Nat'l Council
of La Raza v. Dep't of Justice, 411 F.3d 350, 356
(2d Cir. 2005) (internal quotation marks omitted)). In order
for the privilege to apply, a document must be either intra-
or inter-agency, predecisional, and deliberative. See
Tigue v. U.S. Dep't of Justice, 312 F.3d 70, 76 (2d
Cir. 2002). To be "predecisional, a document must be
prepared to “assist an agency decisionmaker in arriving
at his decision." Fox News Network, LLC v. U.S.
Dep't of the Treasury, 678 F.Supp.2d 162, 167
(S.D.N.Y. 2009) (citation omitted). To be deliberative, a
document must actually be "related to the process by
which policies are formulated." Id. at 168. The
privilege may not be applicable in cases where the decision
making process itself is the central issue in the action,
i.e., a civil rights action. See Burbar v. Inc. Vill. of
Garden City, 303 F.R.D. 9, 13 (E.D.N.Y. 2014) (refusing
to apply privilege in an action for malicious prosecution and
abuse of process as the intent and decision making process of
the county defendants was "unquestionably at the heart
of the claims") (citations omitted). The privilege is
a qualified privilege, which may be overcome when a
litigant's need for information outweighs the
public's interest in its nondisclosure. See Houser v.
Blank, No. 10 CIV. 3105, 2013 WL 873793, at *2 (S.D.N.Y.
Mar. 11, 2013).
claim of deliberative-process privilege must be lodged by the
head of the agency after personal consideration of the
allegedly privileged material or by a subordinate with high
authority pursuant to guidelines on the use of the privilege
issued by the head of the agency." In re Methyl
Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 643
F.Supp.2d 439, 443 (S.D.N.Y. 2009). The assertion of this