Schiller v. City of New York

252 F.R.D. 204, 2008 U.S. Dist. LEXIS 61605, 2008 WL 3539894
CourtDistrict Court, S.D. New York
DecidedAugust 13, 2008
DocketNos. 04 Civ. 7922(RJS)(JCF), 04 Civ. 7921(RJS)(JCF)
StatusPublished
Cited by3 cases

This text of 252 F.R.D. 204 (Schiller v. City of New York) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schiller v. City of New York, 252 F.R.D. 204, 2008 U.S. Dist. LEXIS 61605, 2008 WL 3539894 (S.D.N.Y. 2008).

Opinion

MEMORANDUM AND ORDER

JAMES C. FRANCIS IV, United States Magistrate Judge.

These are two of the cases arising from hundreds of arrests that took place in connection with the Republican National Convention (the “RNC”) in 2004. In early 2007, the plaintiffs in these cases moved to compel the production of certain intelligence documents in the possession of the New York City Police Department (the “NYPD”). I reviewed the disputed documents in camera and, by Memorandum and Order dated August 6, 2007 (the “August 6 Order”), I granted the plaintiffs’ motion in part and ordered the defendants (hereinafter the “City”) to produce the majority of the documents in redacted form. Schiller v. City of New York, 244 F.R.D. 273 (S.D.N.Y.2007). The City subsequently filed objections to my August 6 Order, proffering a declaration from NYPD Deputy Commissioner of Intelligence David Cohen. On November 28, 2007, the Honorable Richard J. Sullivan, U.S.D.J., remanded the matter so that I could determine whether Commissioner Cohen’s declaration necessitated reconsideration of any part of my August 6 Order. (Order dated Nov. 28, 2008). For the reasons discussed below, reconsideration is granted in part. I have provided the defendants with copies of the documents for which alterations to the redactions should be made, and they shall be produced to the plaintiffs in accordance with this Order.

Background

A. The Disputed Documents

The factual background of this dispute has been set forth in prior opinions, see Schiller v. City of New York, Nos. 04 Civ. 7922 & 04 Civ. 7921, 2007 WL 1461378, at *1-2 (S.D.N.Y. May 18, 2007); Schiller v. City of New York, Nos. 04 Civ. 7922 & 04 Civ. 7921, 2007 WL 735010, at *1-2 (S.D.N.Y. March 12, 2007), and will be repeated here only to the extent that it is relevant to the remand. Prior to the RNC, the Intelligence Division of the NYPD, led by Commissioner Cohen, launched an information gathering effort to assess the potential security threat presented by anticipated protest activities. (Declaration of David Cohen dated May 2, 2007 (“Cohen 5/2/07 Deel.”), attached as Exh. B to Declaration of Tonya Jenerette dated June 12, 2008 (“Jenerette 6/12/08 Deck”), ¶¶ 1, 6). That effort included internet research, use of confidential informants, and monitoring by undercover officers. The information was analyzed by Commissioner Cohen and presented to the RNC Executive Committee1 in the form of “end-user” reports. (Declaration of David Cohen dated June 6, 2007 (“Cohen 6/6/07 Deck”) attached as Exh. A to Jenerette 6/12/08 Deck, ¶¶ 5-6; Cohen 5/2/07 Deck, ¶¶ 9, 11, 13). The end-user reports were provided to the plaintiffs in January 2007.

Subsequently, the plaintiffs determined that the 600 pages of end-user reports “were only part of the Defendants’ pre-RNC intelligence gathering” (Letter of Palyn Hung dated April 12, 2007 at 2), and served a request on the City seeking the remainder of the documents. On May 18, 2007, I determined [206]*206that this document request was not overly broad and was sufficiently likely to lead to the discovery of admissible evidence. Schiller, 2007 WL 1461378, at *2-3.

The City objected to production of the additional intelligence documents on the basis that portions of them are protected by the law enforcement privilege. In particular, the City has asserted the privilege with respect to three categories of documents. The first category consists of “raw, unevaluated field intelligence reports,” also known as “DD5s,” which were prepared by undercover officers or their handlers.2 The City contends that these reports are wholly protected by the privilege. The second category includes 84 other documents that the City also claims are privileged in their entirety. The third category consists of 177 documents that the City is willing to produce in part. (Declaration of David Cohen dated April 30, 2008 (“Supplemental Cohen Deck”), ¶ 7; Cohen 6/6/08 Deck, ¶¶ 6-7).

B. The August 6 Order

In my August 6 Order, I concluded that nearly 300 pages of category 1 documents and 40 pages of category 2 documents did not contain substantive information relevant to the RNC and therefore did not need to be produced to the plaintiffs. Schiller, 244 F.R.D. at 278 & n. 9, 280 & n. 14. With respect to the remainder of the documents, however, I determined that materials from all three categories must be produced to the plaintiffs, subject to certain redactions. First, I ordered the field intelligence reports produced with the following information redacted: (1) case number, (2) date of report, (3) date of opening of the investigation, (4) identity of the reporting unit, (5) identity of the reporting person, (6) date, time, and location of the event reported on, (7) meeting activities, and (8) name or description of individuals present. Id. at 277-79. In general, the names of organizations and data gathered by the Intelligence Division regarding RNC-related protest activity of those organizations were left intact, though I redacted a limited amount of information where disclosure could lead to the identification of an undercover officer. Id. at 279. Next, I ordered the documents in category 2 produced with redactions along similar lines. However, I permitted 44 of the remaining pages from category 2 — documents discussing logistics of the NYPD’s intelligence gathering operation and observations from non-RNC demonstrations in other cities — to be withheld in their entirety because their disclosure would have likely revealed confidential law enforcement tactics and because they did not contain information about activists’ RNC-related plans. Id. at 280 & n. 15.

In category 3,1 largely adopted the redactions made by the City; however, I ordered some of the redacted information disclosed because it was not apparently subject to the law enforcement privilege. For example, I ruled that information obtained as the result of an undercover investigation was not per se privileged and that redactions made on that basis were therefore not justified in the absence of a specific showing that disclosure of the information would jeopardize ongoing or future investigations. Id. at 281.

C. Subsequent Procedural History

In the August 6 Order, I expressly noted that my ruling with respect to documents in categories 2 and 3 was based in part on the defendants’ failure to “explain how [the documents] implicate^] the privilege, as [they had done] with the field intelligence reports.” Id. at 280 n. 13. Accordingly, when the City sought to file objections to my August 6 Order, it submitted a supplemental declaration from Commissioner Cohen, in part to address this deficiency. (Declaration of David Cohen dated Aug. 27, 2007 (“Cohen 8/27/07 Deck”); Letter of Peter G. Farrell, dated Aug. 31, 2007, at l).3 The City also [207]*207applied for permission to serve a redacted version of the Supplemental Cohen Declaration on plaintiffs’ counsel and to file an unredacted copy under seal for ex parte review by the Court. Because the Supplemental Cohen Declaration was submitted for the first time on appeal, Judge Sullivan remanded the matter so that I would have the opportunity to consider any new arguments advanced by the City based on the Declaration.

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252 F.R.D. 204, 2008 U.S. Dist. LEXIS 61605, 2008 WL 3539894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schiller-v-city-of-new-york-nysd-2008.