Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Norton v. Town of Islip

United States District Court, E.D. New York

March 9, 2017

TOWN OF ISLIP, COUNTY OF SUFFOLK, JOANNE HUML, individually and in her official capacity as a Town of Islip Assistant Town Attorney and Director of the Division of Law Enforcement of the Town of Islip Office of the Town Attorney, RONALD P. STABILE, JR., individually and in his official capacity as Investigator for the Town of Islip Office of the Town Attorney, Defendants.



         Presently before the Court is Plaintiff Howard Norton's (“Norton” or “Plaintiff”) Motion to Compel a “proper and complete privilege log” against Defendants Town of Islip (the “Town”), Joanne Huml (“Huml”), and Ronald P. Stabile, Jr. (“Stabile” and collectively “Defendants”).[1] See Plaintiff's Memorandum of Law in Support of His Motion Regarding the Sufficientcy [sic] of Town Defendants' Privilege Log (“Pl.'s Mem. Law”), DE [248], 1. Specifically, Plaintiff moves to compel a revised privilege log for documents dated September 14, 1988 through February 26, 1999, for which Defendants have provided a privilege log (“Privilege Log”) that was created in a predecessor case, Norton v. Town of Islip et al., 98-CV-6745 (“Norton I”), and a privilege log for documents dated between February 27, 1999 through April 23, 2003, for which Defendants served no privilege log. See generally id. Defendants oppose the motion in its entirety, arguing that the Norton I log is sufficient as is, and, in any event, this Court has already deemed the underlying documents privileged, and Plaintiff previously waived his right to a privilege log. See generally Town Defendants' Opposition to Plaintiff's Motion Concerning Privilege Logs (“Def.'s Mem. Law”), DE [249]. For the reasons set forth herein, Norton's Motion to Compel is GRANTED. On or before April 8, 2017 Defendants shall produce a privilege log for both time periods consistent with the instructions set forth herein. Failure to do so may result in waiver of the asserted privileges. A status conference is set for May 8, 2017 at 10:00 A.M. in Courtroom 820 of the Central Islip courthouse.

          I. BACKGROUND

         This action (hereinafter referred to as “Norton II”) is part of a series of civil rights lawsuits commenced by Norton against the Town and various Town officials. The Court does not delve into the complex history of the Norton litigations-a chronicle which now spans almost twenty years-as familiarity with the underlying facts is presumed. Nonetheless, for the sake of clarity, the following facts are relevant to the current motion.

         In 1997, the Town commenced a criminal action against Plaintiff relating to his use of real property as a two-family dwelling in violation of the last issued certificate of occupancy for that parcel of land. See Memorandum and Order (“3/27/2009 Mem. and Order”), DE [104], 3-4.[2] One year later in 1998, Norton commenced Norton I, a Section 1983 action in relation to that prosecution. Id. at 5. As part of discovery in Norton I, the Privilege Log was created for documents dated September 14, 1988 through February 26, 1999. In 2000, the Honorable E. Thomas Boyle, Magistrate Judge, conducted an in-camera review of the documents listed on the Privilege Log and issued a one-page Order finding that all but a handful of the documents are protected by the attorney-client privilege and/or work-product doctrine. See 98-CV-6745, Order (“8/22/2000 Order”), DE [42]. This Order was affirmed by District Judge Garaufis. See 98-CV-6745, DE [67]. Thereafter, in January 2003, Judge Garaufis issued a judgment for Plaintiff holding that the Town had denied him procedural due process, and that the certificate of occupancy that formed the basis of the criminal action was not the last validly issued certificate of occupancy. See 3/27/2009 Mem. and Order at 6. However, despite Plaintiff's request, the Town did not withdraw the criminal action against Plaintiff at that time, and the criminal matter was not dismissed until April 23, 2003. Id.

         In 2004, Norton commenced this malicious prosecution and abuse of process action, largely in connection with the Town's continuance of the criminal case despite the Court's decision in Norton I. Discovery was halted early on and subsequently stayed for many years due to motions to disqualify counsel and for summary judgment. The stay was lifted in 2012. See DE [149]. Relevant for the purposes of this motion, on April 17, 2015, Plaintiff moved to compel Defendants to disclose three documents, which had been previously deemed privileged by Judge Boyle. See Motion for Discovery re Waiver or Loss of Privilege (“4/17/2015 Letter Motion”), DE [210]. This Court conducted an in-camera review of the three documents, and, although agreeing with Judge Boyle that the documents were privileged, found that the privilege had been waived because the documents were shown to other Town officials who were not on a “need to know” basis, as well as potentially the public. See Memorandum and Order (“9/18/2015 Mem. and Order”), DE [221]. Defendants moved for reconsideration, which was denied by this Court, see DE [222, 227], and thereafter filed Rule 72 Objections to the Honorable Pamela K. Chen. See DE [231]. Judge Chen overruled the objections, adopted this Court's conclusions, and directed Defendants to produce the documents. See Electronic Order dated 3/3/2016.

         On February 12, 2016, the Court instructed the parties to meet and confer and fully brief a final motion to compel on any outstanding discovery issues by June 1, 2016. See Minute Order (“2/12/16 Minute Order”), DE [237]. Plaintiff thereafter requested a modification of the scheduling order for the purpose of moving to compel Defendants to produce a more complete privilege log. See April 5, 2016 Letter Motion (“4/5/16 Letter Motion”), DE [239]. Norton argued, in part, that he has “a number of reasons to believe waiver has occurred, ” including the Court's recent ruling that privilege on three documents had been waived. Id. Defendants opposed the application, and the Court held oral argument on April 21, 2016. See April 8, 2016 Letter Opposition (“4/8/16 Letter”), DE [240]; Minute Order (“4/21/2016 Minute Order”), DE [244]. At oral argument, the Court granted Plaintiff's motion to move for a privilege log, and this motion followed. See 4/21/2016 Minute Order. Norton now seeks an order compelling Defendants to cure deficiencies in the Privilege Log and produce a log for the withheld documents dated February 27, 1999 through April 23, 2003 (the date that the criminal action was dismissed).


         Pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 26(b)(5)(A), a party who withholds documents on the account of privilege must “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). Consistent with the Federal Rule, courts typically require that parties provide a detailed privilege log for all correspondence withheld. See Trudeau v. N.Y. State Consumer Prot. Bd., 237 F.R.D. 325, 334 (N.D.N.Y. 2006) (“In this respect, and in order to evaluate and facilitate the determination of whether a privilege exists, courts generally require compliance with this statutory mandate [of Fed.R.Civ.P. 26(b)(5)] that an adequately detailed privilege log be provided.”). Fed.R.Civ.P. 26 is further supplemented by Local Civil Rule 26.2, which requires that a party withholding documents on the grounds of privilege set forth: “(i) the type of document, e.g., letter or memorandum; (ii) the general subject matter of the document; (iii) the date of the document; and (iv) the author of the document, the addressees of the document, and any other recipients, and, where not apparent, the relationship of the author, addressees, and recipients to each other . . . .” Local Civil Rule 26.2(a)(2)(A); see also Go v. Rockefeller Univ., 280 F.R.D. 165, 174 (S.D.N.Y. 2012) (citing Fed.R.Civ.P. 26(b)(5) and Local Civil Rule 26.2 in analyzing the sufficiency of a privilege log).

         Compliance with “the requirements of the Federal and Local Rules, ” however, “is insufficient, standing alone . . . .” Favors v. Cuomo, 285 F.R.D. 187, 221 (E.D.N.Y. 2012). In assessing the adequacy of a privilege log, Courts must also ask whether it “suffice[s] to establish each element of the privilege or immunity that is claimed.” A.I.A. Holdings, S.A. v. Lehman Bros., No. 97CIV4978, 2000 WL 1538003, at *2 (S.D.N.Y. Oct. 17, 2000) (quoting Golden Trade, S.r.L. v. Lee Apparel Co., 90 Civ. 6291, 1992 WL 367070, at *5 (S.D.N.Y. Nov. 20, 1992)); see also Bowne of N.Y. City, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993) (explaining that a privilege log should “identify each document and the individuals who were parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure”). Moreover, the burden of establishing the elements of the purported privilege rests on the party asserting the protection from disclosure. See Favors, 285 F.R.D. at 221 (E.D.N.Y. 2012) (“[T]he proponent of the privilege bears the burden of establishing, for each document, those facts that are essential elements of the claimed privilege or privileges.”) (internal quotation marks omitted).

         Here, Defendants assert that the documents are withheld on the grounds of attorney-client privilege, attorney work product protection, and/or deliberative process privilege. The attorney-client privilege protects from disclosure “confidential communications made for the purpose of obtaining legal advice.” McGrath v. Nassau Cty. Health Care Corp., 204 F.R.D. 240, 243 (E.D.N.Y. 2001) (internal quotation omitted). The party opposing disclosure “has the burden of establishing privilege by showing, ‘(1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice.'” Jacob v. Duane Reade, Inc., No. 11 Civ. 160, 2012 WL 651536, at *2 (S.D.N.Y. Feb. 28, 2012) (quoting In re Cty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007)).

         The work-product doctrine protects from disclosure “documents prepared ‘in anticipation of litigation or for trial by or for [a] party or by or for that . . . party's representative.'” Ruotolo v. City of New York, No. 03 Civ. 5045, 2005 WL 823015, at *1 (S.D.N.Y. Apr. 7, 2005) (quoting Fed.R.Civ.P. 26(b)(3)). The Second Circuit construes the phrase “in anticipation of litigation” to mean that, “in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (emphasis in original) (citations omitted).

         Finally, the deliberative process privilege “protects advisory opinions, recommendations, proposals, suggestions, and draft and subjective documents that reflect personal opinions [of officials] rather than those of a governmental agency.” Alleyne v. N.Y. State Educ. Dep't, 248 F.R.D. 383, 387 (N.D.N.Y. 2008); see also Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9, 121 S.Ct. 1060, 1065 (2001) (“The deliberative process privilege rests 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, and its object is to enhance the quality of agency decisions . . . by protecting open and frank discussion among those who make them within the Government . . . .”). (internal quotation marks and citations omitted). It applies to documents that are: “(1) an inter-agency or intra-agency document; (2) predecisional; and (3) deliberative.” Tigue v. U.S. Dep't of Justice, 312 F.3d 70, 76 (2d Cir. 2002) (internal quotation marks omitted).


         Keeping these standards in mind, and for the reasons set forth below, the Court grants Norton's Motion to Compel.

         A. Documents Dated From September 14, 1988 to February 26, 1999

          Initially, the Court turns to the Privilege Log which covers documents withheld dated September 14, 1988 through February 26, 1999, and for which Defendants assert the attorney-client privilege and/or work product doctrine.[3] Plaintiff argues that this log is deficient as it fails to identify authors, recipients, titles, and persons copied on communications, is missing dates, does not properly log handwritten notes, and provides “skeletal descriptions” of the documents. See Pl.'s Mem. Law at 4. In opposition, Defendants produced an amended privilege log (“Amended Privilege Log”), identifying the officials copied on the correspondence, see Declaration of Judah Serfaty (“Serfaty Decl.”), DE [249-1], at Ex. C, Town of Islip's Supplemental Norton I Privilege Log (“Amended Privilege Log”), which Norton still challenges as inadequate. See Plaintiff's Reply Memorandum of Law in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.