Opinion
No. 03 Civ. 4915 (RWS) (MHD).
July 1, 2005
Dara L. Weiss, Esq., Assistant Corporation Counsel for the City of New York, Special Federal Litigation Division, New York, New York.
MEMORANDUM ORDER
Some weeks ago, defendants reported that they had located a number of so-called critique reports in the files of the New York City Police Department. These reports had been prepared by the Department in the wake of the demonstrations that are the subject of the current lawsuit. They are functionally equivalent to a set of critique reports that were the subject of motion practice last year and that this court ordered produced without redactions in December 2004. See Haus v. City of New York, 2004 WL 3019762, *1-4 (S.D.N.Y. Dec. 29, 2004), aff'd, 2005 WL 1021173 (S.D.N.Y. April 28, 2005).
Following the recent discovery of the additional reports, plaintiffs demanded their production. Defendants declined to produce them in unredacted form, citing the deliberative privilege. This refusal triggered a round of letter briefs to the court, in which plaintiffs argued that our December 2004 decision, which rejected defendants' invocation of the same privilege, compelled the production of the newly withheld reports. (See May 27, 2005 letter to the Court from William H. Goodman, Esq.). Defendants in their turn argued that their most recent invocation of the privilege was justified by an intervening decision of the District Court in a related case,McKean v. City of New York, 2005 WL 1020889, *1 (S.D.N.Y. April 28, 2005). (See June 2, 2005 letter to the Court from Assistant Corporation Counsel Dara L. Weiss).
Defendants did produce redacted versions of the reports, in which they deleted all entries that appear under those sections of the reports labeled "IF YES, COMMENTS OR RECOMMENDATIONS:" or "ANY INFORMATION OR COMMENTS THAT MAY PROVE HELPFUL IN PREPARING FUTURE DETAIL:".
By Memorandum and Order dated June 7, 2005, we rejected defendants' attempt to invoke the privilege. Haus v. City of New York, 2005 WL 1355102 (S.D.N.Y. June 7, 2005). In doing so, we noted that our December 2004 decision had detailed the burden that defendants bore in seeking to sustain this privilege, and that on that earlier occasion we had rejected as inadequate the defendants' attempt to justify the withholding of the same types of documents. We further observed that in defendants' June 2 submission, they had failed to meet, or even to attempt to meet, their burden to establish the factual basis for the privilege. We further rejected defendants' implicit contention that the April 28, 2005 decision in McLean had either overruled our December ruling or implicitly rejected its analysis, which had been grounded on clear and consistent Second Circuit law. (Id.).
Indeed, defendants offered no affidavit or other evidence to sustain their privilege claim, and simply proffered to us the redacted versions of the disputed critique reports. (Id.).
Defendants never appealed this aspect of our December decision.
Finally, we offered defendants one more opportunity to demonstrate a basis for "their latest privilege claims." To do so they were instructed to serve one or more affidavits and other evidence "to establish the factual premise for their privilege claims." We further instructed that "they are to be guided by the standards that we have previously summarized." (Id.).
Defendants duly submitted a letter brief and a new affidavit by Bruce Smolka, the Commanding Officer of the Patrol Borough Manhattan South, together with a set of the unredacted and redacted critique reports now at issue. (See June 20, 2005 letter to the Court from Assistant Corporation Counsel Dara L. Weiss). In substance, they reiterate the argument that theMcLean decision controls the resolution of this dispute. They also, for the first time, invoke a somewhat different privilege claim, asserting that the deleted portions of the reports should be protected under the so-called "self-critical analysis" privilege.
Defendants' application has triggered an additional round of briefing both from plaintiffs and then again from defendants. (See June 22, 2005 letter to the Court from David Milton, Esq.; June 27, 2005 letter to the Court from Assistant Corporation Counsel Dara L. Weiss). In substance, plaintiffs argue that they are entitled to the unredacted reports for the reasons that compelled the production of the previously litigated reports. They also argue that defendants have waived any self-critical analysis privilege, and that in any event defendants fail to justify invocation of such a privilege on the merits.
We conclude that defendants' assertion of either or both privileges cannot be upheld. We first address their invocation of the deliberative privilege.
In our December 2004 decision, we summarized the criteria that the Second Circuit has defined for assessment of the deliberative privilege, and concluded that the defendants' showing on that occasion — based exclusively on an affidavit of Mr. Smolka — plainly failed to satisfy those criteria. In renewing their privilege claim for another batch of critique reports, defendants proffer a new affidavit by Mr. Smolka that is substantially the same as the last one, and they do not attempt to argue either (1) that the new set of reports differ materially from those at issue in December or (2) that their current showing meets the standards elucidated in our prior decision.
Defendants' argument — consisting essentially of their interpretation of the McLean order and its supposed implicit rejection of the December ruling — must be rejected for several reasons. First, our decision in December is appropriately viewed as law of the case, and hence binding here absent a compelling showing that it was erroneous. See, e.g., In re Rezulin Products Liability Litig., 224 F.Supp.2d 346, 349-50 (S.D.N.Y. 2004); In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 224 F.Supp.2d 543, 548 (S.D.N.Y. 2004). This principle reflects the sound policy of judicial efficiency and fairness to litigants. In effect, it says that "where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Official Committee of Unsecured Creditors of Color Tile, Inc. v. Coopers Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (quoting Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964)).
The wisdom of that approach in the present context is particularly clear. Last year, defendants were called upon by plaintiffs to produce all critique reports prepared in the wake of the 2003 demonstrations at issue here. Defendants located and produced in redacted form a small number of such reports, claiming that they could not find any others. (See April 25, 2005 letter to the Court from William H. Goodman, Esq., at 2-3). That limited set of reports then became the subject of motion practice in late 2004, and the court's December decision rejected defendants' claim of deliberative privilege and ordered the production of the reports without redaction. It was only months later that defendants, upon further inquiry by plaintiffs, reported having discovered a more substantial set of such reports, and those are now at issue. In short, it is only by virtue of defendants' failure to make an adequate original search and production of critique reports that we find ourselves faced with a second claim of deliberative privilege that essentially mimics the rejected claim from last year. There is no good reason for defendants to profit — as they seek to do — from their own original discovery failings by obtaining a second opportunity to press the same rejected claim pertaining to the status of the Department's critique reports. Nor is there any reason to impose this burden on both plaintiffs and the court. In short, this is precisely the result that the law-of-the-case doctrine is designed to avoid.
Second, defendants' attempted invocation of the deliberative privilege on essentially the same factual showing as in December 2004 is plainly meritless. In the December decision, we explained that a proponent of this privilege must make "a showing that `pinpoint[s] the specific agency decision to which the document correlates' . . . and that demonstrates that the document in question is `not . . . merely peripheral to actual policy formation; the record must bear on the formation or exercise of policy-oriented judgment.'" Haus, 2004 WL 3019762, *3 (quotinginter alia Grand Central P'ship v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999); Tique v. U.S. Dep't of Justice, 312 F.3d 70, 80 (2d Cir. 2002)). As was the case with defendants' earlier showing, although the newest Smolka affidavit contains some modest wording changes, defendants still
identify no policy decisions to which the "comments or recommendations" are directed. . . . As the Second Circuit has noted, the agency "must be able to demonstrate that . . . the documents for which . . . privilege is claimed related to a specific decision facing the agency." Tigue, 312 F.3d at 80. This is to be distinguished from an agency's "routine and ongoing process of self-evaluation," which is not covered.Id. at *3 (quoting Tigue, 312 F.3d at 80).
We observed in December that defendants had simply suggested that the comments and recommendations in the reports may be considered in the future, "presumably when Patrol Borough Manhattan South has to police a comparable demonstration." Id. Smolka's renewed affidavit says in substance the same thing. As before, "This is not an adequate basis for nondisclosure." Id.
We also observed in December that
Defendants also fail to show that the "comments and recommendations," even if they reflect the opinions of the signatories, pertain to the formation of an agency policy. The comments appear to relate solely to the adequacy of personnel and equipment at specific locations and other similar logistical issues concerning the policing of a large demonstration. These are not matters of policy, for which the deliberative privilege was designed. See, e.g., Nat'l Congress for Puerto Rican Rights v. City of New York, 194 F.R.D. 88, 95 (S.D.N.Y. 2000); Soto v. City of Concord, 162 F.R.D. 603, 612 (N.D. Cal. 1995); See also Resolution Trust Co. v. Diamond, 137 F.R.D. 634, 641 (S.D.N.Y. 1991).Id. Defendants' present showing is deficient for the same reason. Indeed, the deleted portions of the current critique reports reflect precisely the type of non-policy logistical issues found inadequate before.
Finally, in December we also noted that "defendants' effort to demonstrate some articulable rationale sufficient to trigger the privilege fails for lack of any substance." Id. The latest Smolka affidavit contains the same "formulaic assertion" about inhibiting "the frank and candid exchange of opinions" that we found wholly inadequate the last time that it was proffered.See id. at *4. As we noted then, "it is almost inconceivable that the proposed limited disclosure would inhibit future comments by police officials as to the optimal size and positioning of police details and equipment or as to similar logistical matters." Id. Defendants' suggestion to the contrary does not improve with repetition, and remains as unpersuasive now as when it was first asserted seven months ago.
Defendants may also be understood to suggest that disclosure to plaintiffs' counsel will lead to future efforts by demonstrators to anticipate police tactics at large demonstrations and to use that knowledge to evade those tactics and commit some form of mayhem. This argument echoes defendants' argument from last year concerning police planning documents, and it equally fails, if for no other reason, because the documents are subject to a fully adequate confidentiality order. See Haus, 2004 WL 3019762, *4-5. (We also note, based on our in camera review, that defendants' hint of danger of such a result if the deleted comments in the current reports were publicly available is entirely unpersuasive.)
As for defendants' reliance on the McLean order as somehow superceding the analysis of our December decision, we have previously rejected their argument, see Haus, 2005 WL 1355102, *1, and see no need to repeat that discussion here. It suffices to note that defendants' reading of McLean would not only contradict controlling Second Circuit law that we have previously cited, as well as implicitly reject our December decision — even though the District Court purported to rely upon it — but would also conflict with an earlier decision of the District Court in this very case, in which the court explicitly adopted the standards and procedures explicated by Judge Weinstein in King v. Conde, 121 F.R.D. 180 (E.D.N.Y. 1989). See Fountain v. City of New York, 2004 WL 941242, *3 (S.D.N.Y. May 3, 2004). Of particular pertinence, the court in Fountain quoted from King a passage requiring that defendants, to protect police records, "must do more than alert the court to the [relevant privilege] or the generalized policies which support it. The police must make a `substantial showing,'Kelly v. City of San Jose, 114 F.R.D. 653, 669 (N.D. Cal 1987), that there are specific harms likely to accrue from disclosure of specific materials . . ." Id. Defendants failed to do so in December and equally fail to do so now.
We also note in passing that many of the deletions made by defendants in the critique reports do not even involve "subjective recommendations in the Critique by the reporting officers concerning future conduct" — the category of information that defendants quote from McLean as being privileged.
As for defendants' belated invocation of the so-called self-critical analysis privilege, it does not save their position. First, we note that defendants not only failed to assert this privilege last year in response to the same category of documents, but failed equally to do so in their recent initial application to protect the current crop of critique reports, choosing instead to rely solely on the deliberative privilege. This manner of proceeding may be appropriately viewed as waiving the privilege. See, e.g., In re Honeywell Int'l, Inc. Secs. Litig., 2003 WL 22722961, *3-5 (S.D.N.Y. Nov. 18, 2003) (citing cases).
Second, in any event, the claim of privilege is meritless. To uphold such a privilege, the proponent must demonstrate that "the information [that he seeks to withhold] is of the type whose flow would be curtailed if the discovery were allowed." Note, "The Privilege of Self-Critical Analysis", 96 Harv. L.Rev. 1083, 1086 (1983). See, e.g., Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, 426 (9th Cir. 1992); Mitchell v. Fishbein, 227 F.R.D. 239, 251-52 (S.D.N.Y. 2005); Spencer v. Sea-Land Service, Inc., 1999 WL 619637, *2, 4 (S.D.N.Y. Aug. 16, 1999); Wimer v. Sealand Serv., Inc., 1997 WL 375661, *1-2 (S.D.N.Y. July 3, 1997). For reasons noted in our December decision and in this Memorandum, defendants utterly fail to demonstrate any likelihood that if the document segments that they have deleted were produced to plaintiffs' counsel, police officials in the future would be any less forthcoming or candid in assessing logistical needs in dealing with future demonstrations.
Although not crucial to our conclusion, we note that the purported chilling effect of disclosure in a variety of comparable contexts has been the subject of searching and highly skeptical assessments by the federal courts. See, e.g., University of Pennsylvania v. EEOC, 493 U.S. 182, 200-01 (1990); Mitchell, 227 F.R.D. at 252-53 (citing cases); Mercy v. County of Suffolk, 93 F.R.D. 520, 522 (E.D.N.Y. 1982).
Having rejected defendants' various theories for redacting the reports now at issue, we direct that they provide those documents to plaintiffs' counsel in unredacted form. This is to be done by July 11, 2005.
Finally, in view of the evident meritlessness of defendants' position on this matter, we conclude that, under Fed.R.Civ.P. 37 (a) (4), defendants' position was not "substantially justified", and that accordingly plaintiffs should be awarded the reasonable expenses of their application to the court for access to these reports unless defendants can demonstrate "other circumstances [that would] make an award of expenses unjustified." Plaintiffs may make such an application by July 15, 2005, with defendants' response due by July 29, 2005.
CONCLUSION
For the reasons noted, plaintiffs' application to compel defendants to produce unredacted copies of the critique reports is granted. Production is due by July 11, 2005.