Opinion
No. 03 Civ. 4915 (RWS) (MHD).
June 2, 2005
Dara L. Weiss, Esq, Assistant Corporation Counsel for the City of New York, Special Federal Litigation Division, New York, New York.
MEMORANDUM ORDER
The parties are once again in dispute about the assertion of the deliberative privilege by the defendants to cover redactions of certain segments of a quantity of so-called critique reports created by members of the New York City Police Department in the wake of the events that are the subject of this lawsuit. We have previously had occasion to address these issues in connection with the same type of documents, and on that occasion we summarized the applicable standards and found defendants' showing to be inadequate with respect to the critique reports then in issue. Haus City of New York, 20004 WL 3019762, *1-4 (S.D.N.Y. Dec. 29, 2004), aff'd, 2005 WL 1021173 (S.D.N.Y. April 28, 2005).
Defendants have since unearthed additional critique reports and have redacted all text in those reports that comes under the headings "IF YES, COMMENTS OR RECOMMENDATIONS:" or "ANY INFORMATION OR COMMENTS THAT MAY PROVE HELPFUL IN PREPARING FUTURE DETAIL:". (See June 2, 2005 letter to the Court from Assistant Corporation Counsel Dara L. Weiss at Ex. B). They have undertaken these redactions on the theory that a decision by Judge Sweet in a related case, McKean v. City of New York, 03 Civ. 7790 (RWS), Memorandum Opinion at 2 (April 27, 2005), permits them to do so.
The burden of proof on the defendant to justify the redactions in question were outlined by the court in its December 29, 2004 decision. Defendants have not sought to meet that burden, and they offer no basis for excusing them from doing so. In this regard we note that McKean does not speak to that burden and does not purport to disagree with our reasoning in the December decision in this case. Indeed, it refers explicitly to our analysis in that prior decision. Moreover, we decline to interpret McLean as excusing defendants from the normal requirements for establishing the deliberative privilege — criteria recognized explicitly by the Second Circuit in decisions that we previously cited.
The weakness of defendants' argument is heightened by their failure to proffer any affidavits or even to provide us coopies of the documents in unredacted form. Indeed, without those documents we could not assess their privilege claims even if we adopted their reading of McLean.
If defendants wish to press their latest privilege claims, they will have the opportunity to serve and file the necessary supporting affidavit(s) and other evidence to establish the factual premise for their privilege claims. In doing so they are to be guided by the standards that we have previously summarized. Moreover they are to serve and file a memorandum addressing the legal issues pertinent to their privilege claim. These submissions are to be served and filed by June 13, 2005. Plaintiffs' responding papers are due by June 17, 2005 and any reply is to be provided by June 20, 2005.