United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
9, 2013, Petitioner Stephen LoCurto moved for discovery of
"any and all notes, memoranda, records or other
documentation of the United States Attorney's Office for
the Eastern District of New York regarding the plea agreement
proposal offered to Stephen LoCurto by the United States
Attorney's Office in the matter of United States v.
Stephen LoCurto, Cr. No. 03-1382 (S-l)" (the
"Discovery Request"), in connection with his
pending petition for writ of habeas corpus pursuant to 28
U.S.C. § 2255. (Mot. for Disc. (Dkt. 34).) After
conducting a thorough search of its files, the Government
produced to Petitioner's counsel the responsive,
non-privileged documents that it was able to locate.
(See Nov. 4, 2016, Ltr. (Dkt. 105).) The Government
maintains that the remainder of the responsive documents that
it located (the "Internal Documents")-i.e.
"notes of AUSA Greg Andres, as well as an internal
memorandum regarding the proposed plea agreements"-are
not discoverable because they are protected by several
privileges, including the work-product privilege. (Id at 2;
see also Dec. 5, 2016, Ltr. (Dkt. 111) at 2
(privilege log).) On December 12, 2016, this court held that
the Government was not obligated to produce the Internal
Documents and that no further discovery was warranted with
respect to the Discovery Request (the "Discovery
Order"). (Discovery Order (Dkt. 113).) Petitioner now
moves for reconsideration of the Discovery Order, pursuant to
Local Civil Rule 6.3. (Mot for Recons. (Dkt. 114).) For the
reasons discussed below, Plaintiffs Motion for
Reconsideration is DENIED.
Civil Rule 6.3 provides that, within 14 days of the entry of
an order, a party may move for reconsideration by filing a
notice of motion and memorandum identifying "the matters
or controlling decisions which counsel believes the Court has
overlooked." Local Civ. R. 6.3. However, reconsideration
of a previous order is an "extraordinary remedy to be
employed sparingly in the interests of finality and
conservation of scarce judicial resources." NE MRe
Receivables. LLC v. Fortress Re. Inc.. 187 F. Supp. 3d
390, 395 (S.D.N.Y. 2016) (quoting In re Health Mgmt, Svs.
Inc. Sec. Litis., 113 F. Supp. 2d 613, 614 (S.D.N.Y.
2000)). The primary grounds justifying reconsideration are
"an intervening change in controlling law, the
availability of new evidence, or the need to correct a clear
error or prevent manifest injustice." Kolel Beth
Yechiel Mechil of Tartikov. Inc. v. YLL Irrevocable
Trust, 729 F.3d 99, 104 (2d Cir. 2013) (quoting
Virgin Atl. Airways. Ltd. v. Nafl Mediation Bd., 956
F.2d 1245, 1255 (2d Cir. 1992)).
request for reconsideration under Local Rule 6.3 must point
to controlling law or factual matters put before the court in
that the movant believes the court overlooked, and that might
reasonably be expected to alter the conclusion reached by the
court. See Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995); Anwar v. Fairfield Greenwich
Ltd.. 164 F. Supp. 3d 558, 560 (S.D.N.Y. 2016). Local
Civil Rule 6.3 must be narrowly construed and strictly
applied so as to "avoid duplicative rulings on
previously considered issues" and prevent the rule from
being used to advance theories not previously argued or
"as a substitute for appealing a final judgment."
Merced Irrigation Dist. v. Barclays Bank PLC, 178 F.
Supp. 3d 181, 183 (S.D.N.Y. 2016) (quoting Montanile v.
Nat'l Broad. Co., 216 F. Supp. 2d 341,342 (S.D.N.Y.
appears to assert three arguments as to why the court should
reconsider its Discovery Order, which held that the Internal
Documents were non-discoverable work-product. First,
Petitioner maintains that the Order "does not take into
account the fact that [he] cannot obtain [the Internal
Documents], or their substantial equivalent, from any other
source" and he has a "substantial need for
discovery" of the Internal Documents, as the
"information contained in the documents make up the core
aspects of the essential elements of his case." (Mot.
for Recons. at 3.) Second, Petitioner argues that
the work-product privilege is inapplicable where, as here,
"the activities of counsel are directly at issue in the
litigation giving rise to the discovery request."
(Id. at 2.) Third, he asserts that the
Government has implicitly waived the work-product privilege
in this case: "[T]he [G]overment's continued refusal
to admit that it would have offered Mr. LoCurto a plea
deal" gives Petitioner a "need to examine the
documents" as the Government "unfairly seeks to use
the privilege as both a 'shield and a sword' in this
litigation." (Id.) None of these arguments,
which are addressed in turn below, justify reconsideration of
the Discovery Order.
Petitioner Has Not Shown the Requisite Substantial
seeking discovery of documents protected by the work-product
privilege must show that it has a "substantial
need" for the work-product materials and "cannot,
without undue hardship, obtain their substantial equivalent
by other means." Fed. R. Civ. P. 26(b)(3)(A).
Work-product that contains "mental impressions,
conclusions, opinions, or legal theory of an attorney"
should be protected "unless a highly persuasive showing
[of need] is made." In re Grand Jury Proceedings.
219 F.3d 175, 190 (2d Cir. 2000) (internal citation omitted);
Upiohn Co. v. United States, 449 U.S. 383, 400
(1981) ("Rule 26 accords special protection to work
product revealing the attorney's mental
processes."). Trial courts have "wide discretion in
determining the existence of substantial need and undue
hardship." Brock v. Frank V. Panzarino. Inc.,
109 F.R.D. 157,159 n.4 (E.D.N. Y. 1986).
articulated in the court's Discovery Order, Petitioner
has not made the required showing to justify disclosure of
the Internal Documents. (Discovery Order at 3.) In his Motion
for Reconsideration, Petitioner has not identified any
matters not considered by the court "'that might
reasonably be expected to alter the conclusion reached by the
court.'" Ctv. of Suffolk v. First Am. Real
Estate Sols.. 261 F.3d 179,187 (2d Cir. 2001) (internal
citation omitted). Nonetheless, the court takes this
opportunity to clarify the reasoning underlying its Discovery
the questions critical to resolving Ground One of
Petitioner's habeas petition is whether the Government
offered Petitioner a plea agreement in advance of
Petitioner's criminal trial. On November 1, 2005,
Assistant United States Attorney ("AUSA") Greg
Andres sent a letter to attorneys representing Petitioner and
10 of his codefendants concerning plea negotiations (the
"Andres Letter"). (Pet'r's Mem. of Law in
Supp. of Mot. to Vacate (Dkt. 2) at ECF p.26.) The parties
dispute whether the Andres Letter represented a plea
offer. (Compare Pet'r's Suppl.
Mem. of Law in Supp. of Pet. (Dkt. 21) at 10, with Gov't
Mem. of Law in Opp'n to Pet. (Dkt. 28) at 27). In its
August 11, 2016, Memorandum & Order, the court noted
that, in order to determine whether the Andres Letter was in
fact a plea offer, formal or informal,
the court would benefit from more information about the
context in which the letter was sent and whether it
represented the entirety of the parties' communications
regarding a possible plea.
(See Order Adopting Report & Recommendation
("Order re R&R") (Dkt. 87) at 18.) While the
Andres Letter has some indicia of a plea offer-it is written,
sets a deadline for guilty pleas, and lists specific
recommended maximum sentences for each defendant-it omits
reference to the charges to which each defendant would need
to plead guilty to, a material term of any plea agreement.
See United States v. Waters, No. 1 l-CR-100 (JRP),
2013 WL 3949092, at *8 (E.D. Pa. July 31, 2013) ("While
we have been unable to find any authority defining the
requisite elements of a formal plea offer, it is clear that
an oral discussion of the sentencing range for a possible
plea agreement that does not include an agreement on the
charges to which the defendant will plead guilty and the
facts that he will admit, does not constitute a formal plea
offer."). Whether the Government discussed with
Petitioner's trial counsel, Harry Batchelder, the charges
Petitioner would be required to plead to in exchange for the
Government recommending a lower sentence is highly relevant
to Petitioner's claim of ineffective assistance of
end, the Government has produced its written correspondence
with Batchelder. (See Ex. B, Nov. 4, 2016, Ltr.
(Dkt. 105-2).). While the Internal Documents could summarize
Andres's verbal conversations with Batchelder, it is
premature to conclude that the Internal Documents are the
only available evidence as to the parties' verbal plea
negotiations. Petitioner can question Batchelder and the
former AUSAs who were involved in Petitioner's case about
their plea negotiations at the future evidentiary hearing,
which the court has already determined Petitioner is entitled
to with respect to Ground One of his habeas petition (see
Order re R&R at 19). If these witnesses are no longer
available or are unable to recollect the information
sought, then Petitioner may be able to demonstrate
substantial need for the Internal Documents. See Horn
& Hardart Co. v. Pillsburv Co.,888 F.2d 8,12 (2d
Cir. 1989) (holding that plaintiff failed to show substantial
need for attorney's meeting notes where plaintiff could
depose individuals present at the meeting); Tribune Co.
v. Purcigliotti, No. 93-CV-7222 (LAP) (THK), 1997 WL
10924, at *4 (S.D.N.Y. Jan. 10,1997) ("[T]here is no
substantial need where the information can be obtained by
deposing witnesses, unless the witnesses are no longer
available or are ...