Rizzo v. New York City Department of Sanitation

Background

Michael Rizzo moved to compel discovery from the City of New York. The court had previously ordered the City to submit one document privately for the court’s review. This type of private review is called an in-camera review. The court was considering whether Rizzo’s need for the document might outweigh the City’s claim that some information was protected by the deliberative process privilege, which can protect certain preliminary, decision-making communications by government agencies.

The document was a spreadsheet used by a reviewer who handled Rizzo’s request for accommodation to the COVID-19 vaccine mandate. It tracked accommodation requests that the reviewer personally reviewed. The spreadsheet included non-party employees’ names, employee identification numbers, email addresses, and phone numbers. The City withheld that identifying information as irrelevant. It also withheld a column labeled “Proposed Outcome,” which contained the reviewer’s preliminary thoughts about how requests should be decided, based on the deliberative process privilege.

Rizzo also moved to compel two emails withheld under the attorney-client privilege and the work-product doctrine. The court stated that the record was not sufficient to determine whether the emails constituted the agency’s “working law”—the rules or guidance used to make decisions—and whether any privilege had therefore been waived.

Court’s rulings

After reviewing the spreadsheet privately, the court ordered the City to produce a redacted version containing the columns labeled “Last Name,” “First Name,” “Type of Request,” “Acknowledgment,” “Reviewer,” “Final Determination,” and “Date Decision Sent.” The court ruled that the non-party employees’ phone numbers, email addresses, and employee identification numbers had no bearing on the issues in the case and therefore did not have to be produced.

The court did not decide whether the “Proposed Outcome” column was protected by the deliberative process privilege. Instead, it determined that the column was irrelevant because the final disposition of each request, rather than a preliminary proposal, was potentially relevant to the parties’ claims and defenses.

For the two emails, the court ordered the City to submit a letter brief by June 4, 2025, addressing whether the documents were the agency’s “working law,” along with any supporting declarations. Rizzo was permitted to submit responsive papers by June 9, 2025.

The court granted defense counsel’s request to adjourn the pre-trial conference from May 29, 2025, to July 14, 2025. The order separately stated that the parties were to appear for a pre-trial conference on July 21, 2025, at 10:30 a.m. The Clerk was directed to terminate ECF Nos. 62, 63, and 71.

Effect of the order

This was a discovery and case-management order, not a decision on the underlying claims. It required partial production of the spreadsheet, left the privilege issue concerning the two emails unresolved pending further briefing, and did not decide whether the “Proposed Outcome” column was privileged because the court found it irrelevant.