Opinion
No. 99-CV-1813(TJM/DRH)
October 10, 2001
JOSEPH R. DeMATTEO, ESQ., Counsel for Plaintiffs, New York, New York.
JEFFREY L. BERNFELD, ESQ., Counsel for Plaintiffs, New York, New York.
DREYER BOYAJIAN LLP, WILLIAM J. DREYER, ESQ., DANIEL J. STEWART, ESQ. Counsel for Defendants County of Rensselaer Executive Office and Zwack Albany, New York.
O'CONNOR, YOQUINTO RYAN, LLP, THOMAS J. O'CONNOR, ESQ., Counsel for Defendants County of Rensselaer and Madden, Troy, New York.
GERSTENZANG, O'HERN, HICKEY GERSTENZANG, THOMAS J. O'HERN, ESQ., Counsel for Defendant Cybulski, Albany, New York.
E. STEWART JONES, ESQ., Counsel for Defendant Ehring, Troy, New York.
PEOPLE OF THE STATE OF NEW YORK, Intervenor, MICHAEL KATZER, ESQ., Special District Attorney for Rensselaer County, Slingerlands, New York.
AINSWORTH, SULLIVAN, TRACY, KNAUF, JOHN W. BAILEY, ESQ., WARNER RUSLANDER, P.C., Counsel for Non-Party Witnesses Bruno and Rynkowski Albany, New York.
MEMORANDUM-DECISION AND ORDER
Presently pending is the motion of non-party witnesses Kenneth R. Bruno ("Bruno") and David J. Rynkowski ("Rynkowski"), District Attorney and Assistant District Attorney respectively for Rensselaer County, for a protective order and to seal the transcripts of their depositions in the above captioned case. Docket Nos. 114, 115. Also pending is the motion of the People of the State of New York ("People"), by Michael Katzer, Special District Attorney for Rensselaer County, to intervene in this action and to compel production to the People of the transcripts of the depositions of Bruno and Rynkowski. Docket Nos. 117-19.
For the reasons which follow, the motion of Bruno and Rynkowski is granted in part and denied in part, and the motion of the People (1) to intervene is granted, and (2) for an order compelling production of copies of the Bruno and Rynkowski transcripts is denied without prejudice.
I. Background
In 1997, a Rensselaer County grand jury returned an indictment charging plaintiffs Victor J. Cipolla ("Cipolla"), Susan E. Martin ("Martin") and Dirk Van Ort ("Van Ort") with various offenses under New York law related to allegations that Van Ort had been paid by Rensselaer County for employment for which he failed to appear. Bailey Aff. (Docket No. 114) at ¶¶ 3-6. Van Ort eventually pleaded guilty to a misdemeanor charge. Id. at ¶ 7. Cipolla and Martin were each acquitted of all charges after trial. Id.
The prosecution of that case was conducted by the Office of the Rensselaer County District Attorney. Bruno was then and remains now the District Attorney. Rynkowski was and remains an Assistant District Attorney in that office. Id. at ¶¶ 1, 2.
Following their acquittals, Cipolla and Martin commenced this action alleging principally that defendant Henry Zwack, then the Rensselaer County Executive, and others in his administration conspired to deprive plaintiffs of their civil rights by instigating the criminal prosecution. See generally Cipolla v. County of Rensselaer, 113 F. Supp.2d 305 (N.D.N.Y. 2000), opinion vacated and reconsidered, 129 F. Supp.2d 436 (N.D.N.Y. 2001). Plaintiffs served subpoenas on Bruno and Rynkowski for their depositions pursuant to Fed.R.Civ.P. 45. Bailey Aff. at ¶ 9. Prior to their depositions, Bruno and Rynkowski moved orally to quash the subpoenas on various grounds. That motion was denied without prejudice to renewal in writing and an order was entered establishing a schedule for such motion. Docket No. 95. The depositions of Bruno and Rynkowski proceeded on May 17 and 18, 2001. However, the transcripts of their depositions were ordered sealed pending the filing of and decision on the motion of Bruno and Rynkowski to quash or seal those transcripts. Tr. of Bruno Dep. at 4-10; Tr. of Rynkowski Dep. at 7-9. Bruno and Rynkowski timely filed their motion to strike or seal the transcripts of their depositions. Docket Nos. 114, 115.
The subpoenas also directed Bruno and Rynkowski to produce documents. It appears that all issues related to the production of documents have been resolved and no such issues have been raised in these motions. Bailey Aff. at ¶¶ 9-12, 17-18.
Copies of the transcripts of the depositions of Bruno and Rynkowski were submitted to the Court for ex parte, in camera review by their counsel on September 7, 2001 at the direction of the Court.
Following the acquittals of Cipolla and Martin, a Special District Attorney was appointed by the Rensselaer County Court to investigate and prosecute allegations of misconduct by officials in Rensselaer County regarding the prosecution and trial of Cipolla and Martin. That investigation has resulted in the return of several indictments which include criminal charges against Zwack, Joseph Cybulski and Daniel Ehring, all defendant's in the above captioned action. Katzer Affirm. (Docket No. 118) at ¶ 3. The trial of one indictment has been completed. Rynkowski was called as a witness at that trial. Bruno and Rynkowski may be called as witnesses at the remaining trials. Id. at ¶ 11.
II. Discussion
A. Protective Order
Bruno and Rynkowski seek protection for the transcripts of their depositions on the ground that they are protected from disclosure by the deliberative process privilege. Because this claim of privilege arises in a case where the plaintiffs are asserting federal constitutional claims, the claim of privilege is governed by federal common law. See National Congress for Puerto Rican Rights v. City of New York, 194 F.R.D. 88, 92 (S.D.N.Y. 2000); Burka v. New York City Transit Auth., 110 F.R.D. 660, 663-64 (S.D.N.Y. 1986). That privilege "`protects the decisionmaking process of the executive branch in order to safeguard the quality and integrity of governmental decisions.'" A. Michael's Place, Inc. v. F.T.C., 18 F.3d 138, 147 (2d Cir. 1994) (quoting Hopkins v. U.S. Dep't of Housing Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991)).
This privilege has been variously termed the "governmental privilege," see National Super Spuds, Inc. v. New York Mercantile Exchange, 591 F.2d 174, 181 (2d Cir. 1979); the "self-critical analysis privilege," see Thompson v. Lynbrook Police Dep't, 172 F.R.D. 23, 26 (E.D.N.Y. 1997); the "self-evaluative privilege," see Roberts v. Hunt, 187 F.R.D. 71, 74 (W.D.N.Y. 1999); and even the "bank examination privilege." See Principe v. Crossland Savings, FSB, 149 F.R.D. 444, 447 (E.D.N.Y. 1993).
The burden of establishing the privilege rests with the party asserting it. See Kaufman v. City of New York, No. 98CIV.2648, 1999 WL 239698, at *4 (S.D.N.Y. Apr. 22, 1999). A party asserting the privilege must demonstrate that the information for which protection is sought is both "predicisional" and "deliberative." See Hopkins, 929 F.2d at 84; National Congress for Puerto Rican Rights, 194 F.R.D. at 92. Information is "predecisional" if it reflects matters leading to the final decision of an agency. See Id. Information is "deliberative" if it actually reflects the process by which an agency's decision was reached. Id. The privilege does not protect factual matters, see Principe v. Crossland Savings, FSB, 149 F.R.D. 444, 447 (E.D.N.Y. 1993), or matters occurring after an agency decision has been made. See Thompson v. Lynbrook Police Dep't, 172 F.R.D. 23, 26 (E.D.N.Y. 1997). The privilege thus protects information reflecting advisory "opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulate." Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966); see also NLRB v. Sears, Roebuck Co., 421 U.S. 132, 150 (1975); Thompson, 172 F.R.D. at 26. The privilege applies to information concerning decisions made in the office of a district attorney. See Thompson, 172 F.R.D. at 26-27; Gomez v. City of Nashua, 126 F.R.D. 432, 435 (D. N.H. 1989).
The privilege, however, is not absolute but qualified. A party may overcome a valid assertion of the privilege by demonstrating that other factors outweigh the interests of the government in maintaining the confidentiality of the information. See Thompson, 172 F.R.D. at 26; Principe, 149 F.R.D. at 447. Factors which a court should weigh include the relevance and probative value of the evidence sought to be protected, the availability of such evidence from other sources, and "the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable." Principe, 149 F.R.D. at 447.
Here, Bruno and Rynkowski have established that the transcripts of their depositions contain substantial information concerning the decision of the Rensselaer County District Attorney to prosecute Cipolla, Martin and Van Ort. Much of that information concerns opinions, thoughts, considerations and factors involved in the process leading that office to seek an indictment of those individuals. Thus, as to such information, Bruno and Rynkowski have met their burden of establishing the applicability of the governmental deliberative process privilege. The burden then shifts to the parties to demonstrate interests or factors which outweigh application of the privilege in this case. None of the parties have urged any such overriding interests or factors here.
Thus, the privilege protects portions of the transcripts from disclosure. However, those transcripts also contain information which is factual, postdecisional, nondeliberative and, therefore, not protected by the privilege. This requires a review of the transcripts to determine which portions are protected by the privilege and which are not. This analysis should be made in the first instance by the parties. Accordingly, on or before October 26, 2001, any party contending that any portion of the transcripts are not protected by the privilege in light of this opinion shall designate such portions in writing, by page and line, to counsel for Bruno and Rynkowski. On or before November 9, 2001, counsel for Bruno and Rynkowski shall designate in writing, by page and line, to the parties any of the portions designated by the parties to which Bruno and Rynkowski contend the privilege applies in light of this opinion. A conference will then be held with the Court, in camera and on-the-record, on November 13, 2001 at 3:00 p.m. at which those portions of the transcripts protected by the privilege will be determined. The protective order previously entered prohibiting disclosure of the transcripts remains in effect pending such determination.
B. Motions of the People
The People seek to intervene again in this action to obtain copies of the transcripts of the Bruno and Rynkowski depositions. The interest of the People in opposing assertion of the governmental deliberative process privilege by Bruno and Rynkowski is the same as that of the parties herein, who seek use of the transcripts in the litigation of this action. Therefore, the People's interest "is adequately represented by the existing parties," Fed.R.Civ.P. 24(a), and intervention as of right is inappropriate. However, the People have demonstrated common questions of fact and, therefore, permissive intervention under Fed.R.Civ.P. 24(b)(2) is granted for the limited purpose of seeking an order compelling production of the transcripts of the Bruno and Rynkowski depositions. See Rosenthal v. Giuliani, No. 98 Civ. 8408, 2001 WL 121944, at *1 (S.D.N.Y. Feb. 9, 2001).
The People were previously granted leave to intervene for the limited purpose of seeking a stay of the depositions of two non-party witnesses who were then scheduled to testify in the first criminal prosecution of defendant Zwack. Docket No. 107. That motion was granted. Id.
The People state that they "are not aware of any such privilege and assert that [the] deposition transcripts should not be sealed." Katzer Affirm. at ¶ 10.
As to the motion compelling production of the transcripts, as discussed above, proceedings remain to be completed to determine what portions of those transcripts are protected by the privilege, which will remain sealed, and which are not so protected, which will not be sealed. Those portions which are not sealed will be available to the public, including the People, to the same extent as they will be available to the parties for use in the litigation of this action. See Savitt v. Vacco, No. 95-CV-1842 -1853, 1996 WL 663888, at *8 (N.D.N.Y. Nov. 8, 1996) (Pooler, J.) (holding that the public is entitled to documents which have been produced during discovery in a civil case, and which have not been sealed, to the same extent as are the parties). The People cannot participate in that proceeding to determine the scope of the privilege here because that would require disclosure outside the parties to this litigation of the very information at issue and would thereby defeat the purpose of the privilege. Thus, pending a final determination of those portions of the transcripts which are protected by the privilege and those which are not, the People's motion to compel disclosure is premature. Accordingly, that motion is denied without prejudice to renewal after a final determination by the Court of what portions of the transcripts are protected by the privilege.
III. Conclusion
For the reasons set forth above, it is hereby
ORDERED that:
1. The motion of Bruno and Rynkowski for a protective order sealing the transcripts of their depositions is GRANTED in part and DENIED in part, and:
A. On or before October 26, 2001, any party contending that any portion of the transcripts are not protected by the privilege in light of this opinion shall designate such portions in writing, by page and line, to counsel for Bruno and Rynkowski;
B. On or before November 9, 2001, counsel for Bruno and Rynkowski shall designate to the parties in writing, by page and line, any of the portions designated by the parties to which Bruno and Rynkowski contend the privilege applies in light of this opinion;
C. A conference will then be held with the Court, in camera and on-the-record, on November 13, 2001 at 3:00 p.m. at which those portions of the transcripts protected by the privilege will be determined; and
d. The protective order previously entered prohibiting disclosure of the transcripts remains in effect pending such determination; and
2. The motion of the People to intervene in this action for the limited purpose of seeking an order compelling production of the transcripts of the depositions of Bruno and Rynkowski is GRANTED, and the People's motion for such an order compelling disclosure is DENIED without prejudice to renewal after a final determination is made by the Court concerning those portions of the transcripts which are protected by the governmental deliberative process privilege and those which are not.
IT IS SO ORDERED.