Opinion
97 Civ. 7420 (KMW)(AJP)
August 17, 2000
OPINION AND ORDER
The Court has received the five documents from the Police Department's Department Advocate's Office that were withheld by defendant as work-product privileged, and plaintiff's counsel's August 16, 2000 letter objecting to the claim of privilege.
Plaintiff's counsel claims that work-product protection is unavailable because the Police Department is not a party to this action. (8/16/00 Wolther Letter to Court at 1-2.) The irony of that argument is that the documents were requested from the Police Department (and ordered produced by the Court) pursuant to Fed.R.Civ.P. 34, not a Rule 45 subpoena to a non-party. Plaintiff's objection on this ground, therefore, is overruled.
Plaintiff's second ground is that the documents were prepared in the ordinary course of business, not in anticipation of litigation. (8/16/00 Wolther Letter at 2.) Plaintiff's counsel is correct that the documents were not prepared for this litigation. But as the Court understands the role of the N.Y.P.D. Department Advocate's Office, it is to investigate misconduct charges against police officers and, if necessary, bring departmental charges at an internal police department trial. The Court finds that sufficient to constitute preparation for litigation. See, e.g., Pitt v. City of New York, 82 Civ. 3349, 1984 WL 1323 at *2 (S.D.N.Y. Dec. 10, 1984) ("The Department Advocate's Office prosecutes police officers for misconduct and reviews and formulates policy plans for an effective police disciplinary system."); see also, e.g., Quinn v. Department of Health Human Servs., 838 F. Supp. 70, 75 (W.D.N.Y. 1993) (document prepared by agency counsel in anticipation of quasi-judicial administrative proceeding protected from disclosure as attorney work-product).
Finally, even if the documents were not strictly-speaking privileged, the Court finds them to be irrelevant and not likely to lead to the discovery of admissible evidence. They deal with charges of excessive force by Officer Rivera, while this case, which is trial ready, involves only Officer Fontanez. To the extent relevant to Officer Rivera's credibility if he testifies at trial, the fact of the charges and that he entered into a Stipulation resolving the charges, is more than sufficient for impeachment purposes.
A copy of the Stipulation is attached to one of the documents withheld as privileged. The Court assumes that the Stipulation has been separately produced to plaintiff's counsel, but if it has not, it is to be produced forthwith.
Accordingly, plaintiff's objections to defendants' privilege assertion is overruled.
SO ORDERED.