United States District Court, E.D. New York
MEMORANDUM AND ORDER
I. LOCKE UNITED STATES MAGISTRATE JUDGE.
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”). 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 , 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 . 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
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.
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 ,
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 . This Order was
affirmed by District Judge Garaufis. See 98-CV-6745,
DE . 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.
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 . 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 .
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 .
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 . Judge Chen overruled the objections,
adopted this Court's conclusions, and directed Defendants
to produce the documents. See Electronic Order dated
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 .
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 . 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 ; Minute Order (“4/21/2016
Minute Order”), DE . 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).
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
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).
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
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).
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).
these standards in mind, and for the reasons set forth below,
the Court grants Norton's Motion to Compel.
Documents Dated From September 14, 1988 to February 26,
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. 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