Sulaymu-Bey v. City of N.Y.

372 F. Supp. 3d 90
CourtDistrict Court, E.D. New York
DecidedJanuary 8, 2019
Docket17-CV-3563-AMD-SJB
StatusPublished
Cited by1 cases

This text of 372 F. Supp. 3d 90 (Sulaymu-Bey v. City of N.Y.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sulaymu-Bey v. City of N.Y., 372 F. Supp. 3d 90 (E.D.N.Y. 2019).

Opinion

BULSARA, United States Magistrate Judge:

Pro se Plaintiffs have filed a motion to compel seeking the production of communications between counsel for ACS and one or more individual Defendants. As the motion itself suggests these are communications between an attorney and his or her clients; such communications typically are privileged and not discoverable. See United States v. Ghavami , 882 F.Supp.2d 532, 536 (S.D.N.Y. 2012) ("The attorney-client privilege protects from disclosure '(1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice.') (quoting In re County of Erie , 473 F.3d 413, 419 (2d Cir. 2007) ); see also Fed. R. Evid. 501 & 502 (recognizing attorney-client privilege and setting out associated *92rules). Recognizing that a privilege applies to these documents, Plaintiffs argue that an exception to the privilege requires their production. Specifically, they rely on New York Disciplinary Rule 4-101(C)(4). That rule provides that "[a] lawyer may reveal ... [c]onfidences or secrets necessary to establish or collect the lawyer's fee or to defend the lawyer or his or her employees or associates against an accusation of wrongful conduct." 22 NYCRR § 1200.19 (1990).1

This exception does not assist Plaintiffs. It is intended to permit attorneys to disclose privileged communications when the attorney has been charged with misconduct by his or her client or to assist in collecting legal fees. This is not such a case. The Plaintiffs stand as a third party-in other words, outsiders-to the attorney-client relationship between ACS counsel and the individual Defendants. ACS counsel has not been accused of misconduct by his clients and is not attempting to collect a fee, which would be necessary for him to divulge the privileged communications. And even if there were such allegations-which there are not-third parties like Plaintiffs would have no entitlement to such documents.

Plaintiffs also refer to the crime-fraud exception as a basis to order the production of documents. "[A] party seeking to invoke the crime-fraud exception must at least demonstrate that there is probable cause to believe that a crime or fraud has been attempted or committed and that the communications were in furtherance thereof." In re Richard Roe, Inc. , 68 F.3d 38, 40 (2d Cir. 1995). Plaintiffs have made various allegations that ACS committed crimes in taking their children away from them. This is insufficient to invoke the crime-fraud exception. "[T]he exception applies only when the court determines that the client communication or attorney work product in question was itself in furtherance of the crime or fraud." Id. (emphasis in original). Plaintiffs have not come forward with anything to suggest that the particular documents over which Defendants have asserted the privilege were themselves used to further the alleged crimes. To the extent they are arguing that these documents were used to perpetuate a crime, those allegations are too conclusory-that is, they are without any specific facts about the documents themselves-and therefore provide an insufficient basis to order the production of the documents. See, e.g., In re Currency Conversion Fee , No. MDL 1409, 2003 WL 22389169, at *6 (S.D.N.Y. Oct. 21, 2003) ("[C]onclusory allegations of criminal or fraudulent intent such as these would not strike a prudent person as constituting a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, or that the communications at issue were in furtherance thereof.... Accordingly, plaintiffs' motion to compel production ... is denied.") (quotations and citation omitted). As a result, there is no basis in this case to compel the production of documents over which Defendants have asserted the attorney-client privilege.

Plaintiffs also contend that the privilege log supplied by Defendants is incomplete and makes it difficult to determine whether *93the privilege was properly invoked. On this point, Plaintiffs are correct. Defendants privilege log is the antithesis of an adequate privilege log.

Rule 26(b)(5)(A)(ii) requires quite a bit more than what Defendants have provided. See Fed. R. Civ. P. 26(b)(5)(A)(ii) ("When a party withholds information otherwise discoverable by claiming that the information is privileged ..., the party must ... describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that ... will enable other parties to assess the claim."). "To properly demonstrate that a privilege exists, the privilege log should contain a brief description or summary of the contents of the document, the date the document was prepared, the person or persons who prepared the document, the person to whom the document was directed, or for whom the document was prepared, the purpose in preparing the document, the privilege or privileges asserted with respect to the document, and how each element of the privilege is met as to that document." Burns v. Imagine Films Entm't, Inc. , 164 F.R.D. 589, 594 (W.D.N.Y. 1996). These requirements are codified in the Local Rules of this Court. Local Rule 26.2(a)(2)(A) provides that the party asserting privilege in response to a discovery request must identify "(i) the type of document, e.g. , letter or memorandum; (ii) the general subject matter of the document; (iii) the date of the document; and (iv) the author of the document, the addressees of the document, and any other recipients, and, where not apparent, the relationship of the author, addressees, and recipients to each other[.]" Loc. Civ. R. 26.2(a)(2)(A).

The deficiencies in Defendants' log are manifold. First, generic assertions that a document was sent to ACS personnel-(see, e.g. , Privilege Log, attached to Mot. to Compel, Dkt. No. 45, at line 2)-do not indicate "the person to whom the document was directed, or for whom the document was prepared[.]" Burns , 164 F.R.D. at 594 ; e.g., Go v. Rockefeller Univ. , 280 F.R.D. 165, 175 (S.D.N.Y.

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Bluebook (online)
372 F. Supp. 3d 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sulaymu-bey-v-city-of-ny-nyed-2019.