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Winfield v. City of New York

United States District Court, S.D. New York

July 5, 2017

JANELL WINFIELD, TRACEY STEWART, and SHAUNA NOEL Plaintiffs,
v.
CITY OF NEW YORK, Defendant.

          OPINION AND ORDER

          KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE.

         At a discovery conference before this Court on June 5, 2017, counsel for Plaintiffs Janell Winfield, Tracey Stewart and Shauna Noel moved for permission to file on ECF a preliminary expert report. The report is covered by a Protective Order issued by this Court on February 2, 2017 (Doc. No. 82), which restricts disclosure of analyses of certain confidential data except to counsel for the parties, employees and witnesses involved in this litigation, experts, and Court personnel. For the reasons set forth below, Plaintiffs' request is denied.

         BACKGROUND

         This case concerns a challenge to a New York City policy regarding affordable housing lotteries. The City's policy allocates 50% of units in affordable housing lotteries to individuals who already reside in the community district where the new affordable housing units are being built. This policy is referred to herein as the “community preference policy.”

         Plaintiffs are three African-American residents of New York City who have applied for but never received low-income housing through a housing lottery. They state that New York City neighborhoods are highly segregated by race. Further, they contend that “neighborhoods of opportunity” (defined as those with high-quality schools, nicer parks, lower crime rates, among other favorable attributes) are predominantly white, whereas less desirable neighborhoods are predominantly non-white. Plaintiffs contend the community preference policy prevents African-Americans and Latinos from competing equally for affordable housing in, and gaining entrance to, better neighborhoods - the neighborhoods of opportunity. (Doc. No. 16, First Amended Complaint ¶¶ 1, 2, 6, 7). They also assert the policy perpetuates and exacerbates segregation in neighborhoods throughout New York City. Hence, they contend that the policy discriminates against them and others because of race in violation of the federal Fair Housing Act, 42 U.S.C. § 3604, and New York City Human Rights Law, NYC Admin. Code § 8-107. They assert both intentional and disparate impact theories of discrimination.

         The City denies the allegations of discrimination and asserts that the community preference policy is lawful. In connection with a motion to dismiss that was denied by the Honorable Laura Taylor Swain (Doc. No. 42), the City submitted the declaration of Vicki Been, former Commissioner of the City's Department of Housing Preservation and Development (“HPD”), who explained that the community preference policy “is intended to ensure that local residents, many of whom have deep roots in the community and have persevered through years of unfavorable living conditions, are able to remain in their neighborhoods as those neighborhoods are revitalized.” (Doc. No. 18 ¶ 8). Former Commissioner Been also explained that “neighborhoods throughout the City and their elected representatives often resist approving land use actions required to allow greater density or site affordable housing because of concern about the other types of burdens that development may impose.” (Doc. No. 18 ¶ 8). The community preference policy, she explained, “makes it possible for the City to overcome that resistance and achieve its ambitious affordable housing goals despite neighborhoods' understandable concerns about the difficulties that new construction and growth may pose.” (Doc. No. 18 ¶ 8). In short, the City contends the policy is needed to overcome resistance to building more affordable housing.

         After Judge Swain denied the City's motion to dismiss, the parties commenced discovery in earnest. Early in the discovery process, and in order to facilitate the exchange of information, the parties attempted to negotiate a stipulation of confidentiality and proposed protective order. In a conference before this Court concerning the protective order, the City expressed concern over producing raw data about individuals who apply for affordable housing. This data is not available to the general public through the Freedom of Information Law (“FOIL”) in order to both safeguard the confidentiality of highly sensitive private information and prevent the incorrect manipulation of complex, sensitive data. Ultimately, on February 10, 2017, this Court found that there was good cause for entry of a Protective Order governing discovery and signed a Protective Order explicitly providing that “[a]ny information, including but not limited to analyses derived from or obtained about the [data], will solely be used in connection with the action and subject to the terms” of the Protective Order. (Doc. No. 82, Appendix A at ¶ 4). This Court ruled, however, that Plaintiffs would be permitted to seek leave to publicly file their data analyses later in the litigation, if necessary. (Doc. No. 85 at 19:23-20:22). The City then produced a substantial portion of the affordable housing lottery data pursuant to the Protective Order.

         Plaintiffs commenced analysis of the data produced by the City in anticipation of the need to present statistical evidence as part of their case in chief. Several days before a June 5, 2017 conference scheduled to discuss discovery motions related to the timing and production of documents and depositions, Plaintiffs submitted for in camera review a preliminary expert report containing initial analyses of the data exchanged in discovery. The analyses go to Plaintiffs' arguments on the merits of their claim, but were submitted to this Court purportedly to justify expediting discovery. In reality, the analyses were irrelevant to the discovery issues before the Court. At the discovery conference, Plaintiffs orally requested that they be permitted to publicly file their preliminary expert analyses on ECF. The City objected to Plaintiffs' request because, among other reasons, the exchange of expert reports is not contemplated until a later phase in discovery, the City believes Plaintiffs' preliminary report is misleading and based on incomplete data, and the analyses are subject to the Protective Order. The City explained it is still confirming the accuracy of the data produced, obtaining answers to questions from Plaintiffs about the data, and preparing to produce the remaining data. This Court then ordered further briefing on whether this Court's Protective Order's restriction on publication of Plaintiffs' preliminary expert report should be lifted.

         In their letter brief, Plaintiffs argue that good cause does not exist for their preliminary expert report to be subject to the Protective Order, citing In re Terrorist Attacks on Sept. 11, 2001, 454 F.Supp.2d 220, 222 (S.D.N.Y. 2006) (“holding that, ‘[o]rdinarily, ' good cause for a protective order requires a showing of ‘clearly defined, specific and serious injury'”). (Doc. No. 138 p. 1). They also contend that because the report was submitted to this Court in connection with a discovery dispute, it is a “judicial document” subject to a presumption of public access.

         The City argues that good cause remains for the preliminary expert report to be protected as confidential because:

• The data analyses in the report are subject to a Protective Order entered to facilitate and manage discovery;
• The preliminary analyses do not analyze the totality of relevant data, are misleading, and flawed analytically;
• The City has not had an opportunity to review and respond to the analyses;
• The filing of a preliminary report and acceleration of expert discovery will undermine and interfere with the ...

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