Opinion
Claim No. 138133
08-06-2024
James Irons, Claimant, v. The State of New York, Defendant.
For Claimant: Shanies Law Office By: David B. Shanies, Esq. For Non-Party Movant: Hon. Eric Gonzalez, Kings County District Attorney By: Zachary Sider, Esq., Assistant District Attorney
Unpublished Opinion
For Claimant: Shanies Law Office By: David B. Shanies, Esq.
For Non-Party Movant: Hon. Eric Gonzalez, Kings County District Attorney By: Zachary Sider, Esq., Assistant District Attorney
Javier E. Vargas, J.
Papers Considered:
Notice of Motion, Affirmations & Exhibits Annexed 1-5
Affirmation in Opposition & Exhibits Annexed 6-11
Memorandum of Law in Opposition 12
Upon the foregoing papers and for the following reasons, the Motion by nonparty movant Kings County District Attorney (hereinafter "DA"), for a protective order clawing back certain inadvertently produced materials, is granted in accordance with the following decision.
By Claim filed August 24, 2022, Claimant, James Irons (hereinafter "claimant"), commenced the instant action seeking to recover damages against Defendant, State of New York (hereinafter "State"), for wrongful conviction and imprisonment, pursuant to Court of Claims Act § 8-b, after spending over 26 years imprisoned in State correctional facilities for the horrific 1995 crime, dubbed the "Money Train" murder case, where a subway token booth clerk in Brooklyn, NY, was set on fire and killed allegedly by three adolescents: the claimant, Vincent Ellerbe, and Thomas Malik. They were convicted of robbery and murder in 1996, and were just recently released after a thorough investigation and report by the Brooklyn Conviction Review Unit (hereinafter "CRU"), a bureau of the DA's office, in July of 2022. The Claim alleges that claimant's conviction was the result of his false and contradictory confession allegedly coerced and pressured by former New York City Police Department (hereinafter "NYPD") Detectives Louis Scarcella and Stephen W. Chmil, the arresting officers alleged to have played major roles in the claimant's criminal conviction and incarceration. Following the CRU investigation, on July 15, 2022, the Kings County Supreme Court granted a joint motion of the DA and claimant, pursuant to Criminal Procedure Law § 440.10(1)(g), for the vacatur of the Judgment of Conviction on the grounds of the newly discovered evidence of the detectives' misconduct.
"Money Train" is a 1995 action film, staring Wesley Snipes, Woody Harrelson and Jennifer Lopez, whose fictional, pyromaniac villain squirted gasoline into locked payment booths to torch the clerks (https://en.wikipedia.org/wiki/Money_Train). During the release of the film, the claimant's case involved the worst of seven similar attacks which happened citywide in New York City.
Although the instant Claim was initially assigned to the Hon. Linda Mejias-Glover, who issued a Preliminary Conference and had status conferences with counsel, this Court took over and joined this Claim for discovery purposes with the pending companion Section 8-b cases of Mr. Malik (Claim No. 139031), and Mr. Ellerbe (Claim No. 139032), which were commenced on April 7, 2023. Relevantly, on April 13, 2023, the Court (Mejias-Glover, J.) entered a Protective Order between the parties, which established that any "[i]mproper or unauthorized disclosure of Confidential Materials by any Party shall not be deemed a waiver by any other Party['s]" privileges over said materials and obligated them to "cooperate to restore confidentiality, privilege or immunity to any disclosed material" that was inadvertent or unintentionally disclosed (NYSCEF Doc. 23, at 1, 3, ¶¶ 6, 9). This Court thereafter issued a Preliminary Conference Order (Vargas, J.) on June 9, 2023, on the Malik and Ellerbe matters, ordering and scheduling discovery proceedings, and has periodically conducted status conferences with all counsel extending those disclosure and deposition deadlines.
In accordance therewith, on March 14, 2023, the claimant served the DA with a So-Ordered Subpoena Duces Tecum demanding that any/all documents and/or materials regarding the CRU's investigation of the claimant's case and findings of misconduct by Det. Scarcella be disclosed to the claimant (see NYSCEF Doc. 17). On May 16, 2023, by Stipulation and Order (Vargas, J.), the parties agreed to extend disclosure dates, and the DA reserved its right to exclude materials that it deemed to be privileged or otherwise shielded from disclosure in accordance with the DA's objections (see NYSCEF Doc. 24). Then, the DA began disclosing tens of thousands of documents to the claimant's counsel on August 4, 2023, culminating with the final and problematic disclosure by the DA on January 19, 2024, when it inadvertently produced a 524-page PDF file containing proposed and unapplied redactions and an incorrect version of the privilege logs. Shortly thereafter, on January 22, 2024, the claimant's attorney's point of contact for discovery matters, Deborah Francois, Esq., alerted the DA of the PDF document containing unapplied redactions, asked for a redacted version and informed them that the unredacted PDF file was deleted from their records.
However, less than three weeks later, on February 9, 2024, the claimant's counsel unexpectedly contacted the DA to inform them that not only had his office not deleted the erroneous discovery production, but that they wished to use the production in the instant matter and in the claimant's pending Federal Court lawsuit. This triggered several unsuccessful conferences between the claimant's counsel, his previous co-defendants and the DA on February 13 and 23, 2024, in an attempt to resolve this discovery dispute. Even this Court attempted to resolve their discovery dispute. The claimant and his previous co-defendants' attorneys were unwilling to discard specific lists of cases involving Det. Scarcella that were allegedly compiled by the DA's IT Bureau.
As a result, by Notice of Motion filed March 5, 2024, the DA now moves for this Court to issue a protective order to claw back the inadvertently produced materials, arguing that the materials should be protected from disclosure, returned or destroyed because: (1) the documents are entitled to protection as privileged attorney work product prepared in anticipation of litigation; (2) the documents contain confidential materials that should be sealed according to Criminal Procedure Law ("CPL") §§ 160.50 and 160.55; and (3) the documents produced were beyond the scope of the subpoena. The DA explains that the disclosed documents are privileged and sealed material that names thousands of criminal defendants and their offenses and cannot be unsealed without individual waivers from the former defendants themselves. Nor, according to the DA, may the materials be used in this or any subsequent litigation due to their confidential and privileged nature.
By Affirmation and Memorandum of Law in Opposition filed April 1, 2024, the claimant clarifies that the only documents in dispute are the charts and lists containing cases where Det. Scarcella was involved (hereinafter "Scarcella lists"), and that the rest of the documents would be returned to the DA. With regards to the Scarcella lists, the claimant argues that the DA has failed to meet its burden of showing that they are privileged, beyond the scope of discovery, or attorney's work product because the lists are alleged to be mere compilations of facts, not prepared by counsel. The claimant further posits that the Scarcella lists are not subject to CPL 160.50/.55 seal because the DA cannot assert the right to the confidentiality of those materials that, in any event, do not contain the type of charging or prosecutorial material that these statutes protect and require to be sealed. This Court disagrees.
Pursuant to CPLR 3101(a), there shall be "full disclosure of all matter material and necessary in the prosecution or defense of an action" (Kavanagh v Ogden Allied Maintenance Corp., 92 N.Y.2d 952, 954 [1998]). However, CPLR 3101 also establishes three categories of protected materials, supported by policy considerations: "privileged matter, absolutely immune from discovery (CPLR 3101[b]); attorney's work product, also absolutely immune (CPLR 3101[c]); and trial preparation materials, which are subject to disclosure only upon a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means (CPLR 3101[d][2])" (Spectrum Sys. Intern. Corp. v Chem. Bank, 78 N.Y.2d 371, 376-377 [1991]; see Venture v Preferred Mut. Ins. Co., 153 A.D.3d 1155, 1158 [1st Dept 2017]). The party asserting the privilege carries the burden of establishing the privileged protection, which must be both narrowly construed and consistent with the purposes underlying the immunity (see Spectrum Sys. Intern. Corp., 78 N.Y.2d at 377; Melworm v Encompass Indem. Co., 112 A.D.3d 794, 795 [2d Dept 2013]). "'Trial courts are vested with broad discretion to issue appropriate protective orders to limit discovery.... [T]his discretion is to be exercised with the competing interests of the parties and the truth-finding goal of the discovery process in mind'" (Arch Ins. Co. v Delric Constr. Co., 174 A.D.3d 560, 561 [2d Dept 2019], quoting Cascardo v Cascardo, 136 A.D.3d 729, 729-730 [2016]).
Applying the foregoing principles to the instant case, the DA has sufficiently established that the Scarcella lists are privileged, sealed materials protected from disclosure. This Court conducted an in camera review of the disputed materials. Although the DA first argues that a protective order is needed because the lists are attorney work product created by the CRU in anticipation of future litigation and the reinvestigation of the cases, this argument fails as none of the information included in the Scarcella lists appears to be the result of the attorneys' skills or contains analysis, strategy or legal advice. Specifically, upon review of Exhibit 4, the charts contain headers labeled "Cases involving Det. Louis Scarcella as of 3-31-13," "any case where a witness or listed police officer was named Scarcella" and "any trial conviction where a witness or police officer was named Scarcella." The fields in these charts are broken down into eight sections, including each respective criminal defendant's name, the docket or indictment number, the disposition date, the disposition itself with the crime, the date of sentencing, the actual sentence handed down, the Assistant District Attorney assigned, and any additional notes. The additional notes section is not filled in for every defendant, but when it is, it usually mentions the types of charges faced by the defendant in the case.
The disputed materials, viewed in camera, are annexed to the Motion as Exhibit 3, which contains the Scarcella lists with the proposed disputed redactions, while Exhibit 4 contains the unredacted lists in its entirety.
Unlike much of the case law that discusses the attorney work doctrine, the information in these charts does not include any legal analysis, advice, strategy, or analysis (see Spectrum Sys. Intern. Corp. v Chem. Bank, 78 N.Y.2d at 376-377; Venture v Preferred Mut. Ins. Co., 153 A.D.3d at 1158). Moreover, adjacent to the titles of these charts reads "IT Bureau;" the DA points to no evidence demonstrating that the IT Bureau or the CRU were acting within their capacity as attorneys. To the contrary, these lists do not appear to be attorney work product entitled to privilege under that ground because they contain cases where Det. Scarcella was directly involved and where convictions/defendants were vacated, acquitted, or dismissed, which constitute general factual information that could have been compiled by any layperson. As such, the DA has failed to show that these lists are privileged as attorney work product.
Nevertheless, the DA has sufficiently established that the Scarcella lists contain a trove of information sealed according to Criminal Procedure Laws §§ 160.50 and 160.55, which serve to ensure "that one who is charged but not convicted of an offense suffers no stigma as a result of" being previously charged with criminal offenses (Matter of Hynes v Karassik, 47 N.Y.2d 659, 662 [1979] ; see Fernandez v State of New York, 2023 NY Slip Op 50807[U] [Ct Cl, Vargas J., July 21, 2023]). While the DA argues that the charts should be sealed pursuant to the two statutes, their main argument relies heavily on CPL 160.50(c), which reads in pertinent part as follows:
all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency.
Whether a particular document constitutes "official records and papers" under the statute's definition requires a "fact-based" inquiry into each case's circumstances, leading to diverse pieces of evidence, such as tape recordings, transcripts, indictments, and orders of protection, to be qualified as official records or papers (see Matter of City of Elmira v Doe, 11 N.Y.3d 799, 800 [2008]; Matter of Dondi, 63 N.Y.2d 331, 337-338 [1984]; Matter of Hynes v Karassik, 63 A.D.2d 597, 598 [1st Dept 1978], affd 47 N.Y.2d 659 [1979]). A case with strikingly similar facts to the one at hand is Matter of New York Times Co. v District Attorney of Kings County (179 A.D.3d 115 [2d Dept 2019]), where the Second Department determined that CRU reports involving the same Det. Scarcella and Chmil were undiscoverable as "official records" under CPL 160.50, because they were "created in connection with the arrest and prosecution of the persons whose convictions were ultimately vacated through the conviction review process" (id. at 123). At the time those reports were created, the subjects of the reports stood convicted following prosecutorial action. As the claimant's counsel has made clear in his submissions, the Scarcella lists are the only pieces of evidence in dispute between the parties. Similar to the facts in New York Times Co., the Scarcella lists were a part of the CRU's review of the claimant's conviction which eventually led to his exoneration and that Second Department's holding undisputedly governs here.
Upon my in camera review, the Scarcella lists contain additional information not related to the claimant, such as the full names of thousands of former criminal defendants, their arrest date, specific criminal convictions, dispositions and the sentence imposed. "That detriment to one's reputation and employment prospects often flows from merely having been subjected to criminal process has long been recognized as a serious and unfortunate by-product of even unsuccessful criminal prosecutions" (id. at 124, quoting Matter of Hynes v Karassik, 47 N.Y.2d at 662). It seems clear to this Court that granting an order unsealing the names and dispositions of these cases would go squarely against the legislature's objective of alleviating any stigma that former criminal defendants may face in their pursuit of employment, licensing or life (see Matter of New York Times Co. v. District Attorney of Kings County, 179 A.D.3d at 123). Not to mention the procedural unfairness of disclosing such records in a civil matter where the specific persons - former criminal defendants - protected by the statute are not parties here, have not been notified or otherwise waived the CPL 160.50 protection/privilege (see id. at 124; Fernandez v State of New York, 2023 NY Slip Op 50807[U]). As some of those listed were exonerated or acquitted, the Court deems the Scarcella lists sealed "official records" not subject to discovery herein.
Nor can it be said that the DA waived its privilege to the Scarcella lists by their disclosure as it was shown that the DA intended to maintain the confidentiality of the documents, took reasonable steps to prevent disclosure, acted promptly after discovering the disclosure to remedy the situation, and that the claimant - who received the documents - will not suffer undue prejudice if a protective order against use of the document is issued (see New York Times Newspaper Div. v Lehrer McGovern Bovis, Inc., 300 A.D.2d 169, 172 [1st Dept 2002]; Manufacturers and Traders Trust Co. v Servotronics, Inc., 132 A.D.2d 392, 398-400 [4th Dept 1987]). According to the claimant, the Scarcella lists could be used to establish a pattern of misconduct by Det. Scarcella if the listed cases could have been a result of said misconduct. However, the Court finds that no undue prejudice would be suffered by the claimant by this protective order because he can establish any pattern or alleged misconduct by Det. Scarcella based on the sheer number of exonerations made public and the number of reported cases of his misconduct (see Matter of New York Times Co. v District Attorney of Kings County, 179 A.D.3d at 124; People v DeLeon, 190 A.D.3d 764, 764-765 [2d Dept 2021]; People v Hargrove, 162 A.D.3d 25, 28 [2d Dept 2018]; People v Moses, 58 Misc.3d 1226 [A] [Sup Ct, Kings 2018]; Shakur v State of New York, 54 Misc.3d 674, 677 [Ct Cl 2016] ["the new evidence of Scarcella's propensity to embellish or fabricate," citing various cases where convictions have been overturned due to his conduct and troubling practice and pattern]).
Moreover, it is undisputed that, immediately upon receipt of the unredacted Scarcella lists, another of claimant's counsel initially notified the DA of her receipt and candidly acknowledged that the improperly disclosed documents will be promptly deleted by counsel's office. That action was in conformance with the Protective Order dated April 13, 2023, which contrary to the claimant's intimations, governs him in this proceeding. The unexpected change of mind by claimant's counsel after three weeks in order to retain those documents to buttress his case does not appear harmonious to the spirit of cooperation and fair play underlying that Protective Order, or the Rules of Professional Conduct for that matter (see Rules of Prof Conduct [22 NYCRR 1200.00] §§ 3.3[f][2-3], 3.4[c]).
Finally, the DA appears correct in asserting that the materials produced as Scarcella lists were not within the scope of the claimant's subpoena. The subpoena in question includes a paragraph that requires all documents regarding the CRU's investigation of the claimant's case including but not limited to, all CRU reports, materials, and communications regarding the case, and any investigation concerning official misconduct by former Det. Scarcella (see NYSCEF Doc. 17). There is no doubt that the Scarcella lists were produced through the CRU's investigation of the claimant's case that ultimately led to the vacatur of his conviction based on the former police officer's misconduct. The documents produced by the DA were initially supposed to only include parts of the charts where the claimant and his previous co-defendants were mentioned, which would have left a majority of the contents of the chart redacted as evident from the exhibits. In this Court's view, the DA properly utilized redactions to satisfy any unwarranted invasion of the former criminal defendants' personal privacy (see New York Civ. Liberties Union v New York City Dept. of Correction, 213 A.D.3d 530, 531 [1st Dept 2023], lv denied - A.D.3d -, 2024 NY Slip Op 60397 [2024]). As a result, the DA correctly asserts that the rest of the charts with the names of other defendants should not have been disclosed to the claimant's counsel and should be returned.
Accordingly, it is ORDERED that the DA's
ORDERED, that in accordance with the Protective Order dated April 13, 2023, the parties herein shall cooperate to restore confidentiality, privilege and immunity to any improperly disclosed material, including the Scarcella lists; and it is further
ORDERED, that the claimant must hereby return to the DA the unredacted Scarcella lists as contained in Exhibit 4, within 30 days of the file date of this Decision and Order, and those/such lists/charts cannot be used in this or any other legal matter; and it is further
ORDERED, that the Court issues a protective order over all the other disclosed materials, except Exhibit 3, that do not involve the claimant or his previous co-defendants, as he agreed in his submissions were not in dispute, to be returned to the DA.