Rizzo v. New York City Department of Sanitation

Background

On April 14, 2025, Michael Rizzo filed a letter-motion asking the court to compel discovery. The court directed the City of New York to explain why the requested documents had not been produced and to provide a privilege log for any documents withheld as privileged.

The City responded that it had asserted privilege over certain documents and portions of documents. Its privilege log contained three entries. After the City made additional productions, the court asked Rizzo to identify any remaining discovery disputes and say whether he intended to challenge the privilege assertions. Rizzo disputed the assertions and asked the court either to order production or to conduct an in camera review, meaning a private review by the judge.

Court’s analysis

The court noted that the work-product doctrine and deliberative-process privilege are qualified privileges, meaning that they can be overcome in some circumstances. The court explained that deliberative-process privilege may be overcome by balancing the public interest in keeping information confidential against the litigant’s need for access. It also noted that factual work product may be disclosed upon a showing of substantial need. In addition, the court stated that a deliberative-process privilege claim must be made by the head of the agency after personally considering the material, or by a sufficiently senior subordinate acting under agency guidelines.

Order

To potentially avoid formal motion practice, the court ordered the City to provide unredacted copies of documents DEF742-750 for ex parte and in camera review—that is, review by the court without public disclosure and outside the parties’ ordinary exchange—for the initial purpose of determining whether Rizzo’s need for the documents would likely overcome a possible privilege claim. Judge Jeannette A. Vargas ordered the documents produced to the court by Friday, May 9, 2025. The order did not decide whether the privilege claims were valid or whether Rizzo was entitled to obtain the documents.