Judge Orders NYC Law Dept. to Comply With Discovery in Lawsuit Over NYPD Treatment of Protestors
Plaintiffs' counsel said lawyers representing the city in civil litigation have tried to withhold basic information from them as they seek to depose police officers.
August 19, 2021 at 05:38 PM
4 minute read
A federal magistrate judge said Thursday that he would take a more proactive role in requiring city attorneys to comply with discovery orders in consolidated litigation over the New York City Police Department's response to protests for racial justice.
The comments, from U.S. Magistrate Judge Gabriel W. Gorenstein, came in response to complaints by plaintiffs' attorneys that the New York City Law Department, which represents the city in civil litigation, was trying to withhold basic information from lawyers seeking to depose officers.
In a nearly hour-long hearing Thursday morning, Gorenstein ordered the Law Department attorneys to provide documents two business days in advance of depositions, and warned that there could be consequences if they failed to meet the requirement.
"You just have to understand this is a serious obligation," he said.
Gorenstein also forbade the lawyers from improperly invoking law-enforcement privileges on behalf of officers, who were asked about off-duty conduct during their depositions.
The rulings, which were largely in line with the requests of plaintiffs' attorneys, came amid accusations that the city was waiting until the last minute to turn over certain documents on the eve of depositions.
Gorenstein did not, however, require the already-deposed officers to be called back for continued depositions.
A spokesman for the Law Department said attorneys were moving "as fast as we can" to produce materials for the plaintiff's demand to depose 44 officers in connection with 83 protests that occurred over a seven month period.
"But the process involves a significant amount of coordination," the spokesman, Nick Paolucci, said in a statement. "It doesn't happen overnight and plaintiffs running to court at every turn detracts from our efforts. The city has already produced over 15 witnesses covering many hours of testimony on dozens of topics and will continue to litigate this case responsibly."
Remy Green, a partner with Cohen&Green, said Thursday that they had sometimes received information relating to officers' personnel histories a week after officers were prepped for depositions. In some instances, Green said, that production came just hours ahead of time, apparently in violation of Gorenstein's directives.
"It's every single deposition," they said.
Dara Weiss, a Law Department attorney, said her side was "making an effort to send things" 48 hours in advance, but acknowledged that "there have been circumstances when we haven't been able to do that."
The plaintiffs had also raised concerns about the Law Department's invocation of privilege on behalf of a police captain, who was told not to testify about an incident that prompted his suspension from the force. Attorneys for the city said that the incident was "of a personal nature," and refused an offer to mark that section of the deposition transcript confidential.
Gorenstein agreed that there was no basis to invoke the privilege, which only applies to law enforcement techniques, sources and investigations. Rather, he directed the attorneys instead to "make your objections" and agree to mark the transcripts confidential.
"Don't jump to privilege if privilege doesn't apply," Gorenstein said, noting that he wasn't accusing the Law Department of acting in bad faith.
The judge also agreed to review a sampling of redactions that the attorneys had made on discovery that had been turned over to the plaintiffs, to ensure that they had complied with his ground rules.
In a statement Thursday, Green said their team hoped the court's "rulings and admonitions will serve as a wake-up call to Mayor de Blasio's Law Department and put an end to some of the obstructive discovery tactics the City has used in this case."
The Law Department did not immediately provide a comment on Thursday.
Gorenstein, a veteran magistrate judge in Manhattan, is overseeing discovery disputes in the consolidated lawsuits, which accuse the NYPD of violating protestors' rights and failing to discipline its officers in response to the racial-justice uprisings that started last summer. The case is assigned to U.S. District Judge Colleen McMahon of the Southern District.
The Law Department has said that the protests presented unprecedented challenges for police and that officers had worked to protect the rights and safety of all involved.
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