Opinion
03 Civ. 4915 (RWS).
April 18, 2006
MEMORANDUM OPINION
Objections by the City to the July 1, 2005 discovery order of the Honorable Michael H. Dolinger were filed on July 18, 2005, apparently mailed to chambers but not filed with the Court. The plaintiffs responded on July 25, 2005. On April 3, 2006, the plaintiffs noted that no decision had been rendered on the objections which did not appear to have been received in chambers. This unhappy set of circumstances is made more critical in view of the close of discovery now scheduled for April 21, 2006.
As the opinion of the magistrate judge who has been overseeing discovery in this action, Judge Dolinger's ruling is entitled to substantial deference. See Rmed Inc. v. Sloan's Supermarket's Inc., No. 94 Civ. 5587, 2000 WL 420548 at *2 (S.D.N.Y. April 18, 2002).
Further, Judge Dolinger in his December 29, 2004 decision held that defendants had not established the deliberative process privilege. See Haus v. City of New York, 2004 WL 3019762, at **1-4 (S.D.N.Y. Dec. 29, 2004), aff'd, 2005 WL 1021173 (S.D.N.Y. Apr. 28, 2005). Defendants chose not to appeal the portion of Judge Dolinger's order rejecting the assertion of the privilege. Indeed, the same critique forms had been produced in unredacted form in related cases in 2004.
Judge Dolinger's December 29, 2004 order, which this Court affirmed, Haus v. City of New York, 2005 WL 1021173 (S.D.N.Y. Apr. 28, 2005), determined that the critique forms were not protected by the deliberative process privilege. The instant critique reports are identical to those that were the subject of that order. Further, Judge Dolinger pointed out in his June 2, 2005 order, nothing in this Court's decision in McKean v. City of New York, 03 Civ. 7790, Mem. Op. at 2 (Apr. 27, 2005) (attached as Exhibit C to Weiss 6/18/05 Letter), purports to overrule this Court's December 29, 2004 opinion in this case. As Judge Dolinger explained:
McKean does not speak to [the burden of establishing the deliberative process privilege] 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 McKean 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 defendants have failed to make the substantial factual showing to establish that the privilege should be maintained in the light of Judge Dolinger's finding.
The July 6, 2005 opinion of Judge Dolinger is affirmed with regret only that the issues were not brought to the attention of the Court earlier and that the docket does not reflect any timetable for the submission of the objections.
It is so ordered.