Keyes v. The City Of New York

Background

The New York County District Attorney’s Office moved to quash, meaning cancel, subpoenas that Mytayari Keyes served on two nonparty Assistant District Attorneys: Tania Fiedorek and Jeffrey Levinson. The subpoenas sought depositions, or sworn testimony, in Keyes’s case against the City of New York and other defendants.

Subpoena for Tania Fiedorek

Fiedorek interviewed defendant police officer Cassidy and recorded notes in a district attorney data sheet. The court found that her deposition was unlikely to be relevant and was not proportional to the needs of the case under Federal Rule of Civil Procedure 26(b)(1), especially because the notes had already been produced. The court also noted that Fiedorek was neither the investigating prosecutor nor the trial assistant. To the extent testimony about anything beyond her notes would reveal her mental impressions or opinions, it would be protected opinion work product, meaning material reflecting an attorney’s mental processes.

Subpoena for Jeffrey Levinson

Levinson was a supervising Assistant District Attorney who briefly appeared during the criminal trial at the request of the trial assistant. Keyes sought his deposition to learn whether the District Attorney’s Office investigated the defendant officers and what the investigation found. The court concluded that opinions about the officers’ credibility would be irrelevant and likely protected work product. It also found that Keyes had provided no reason why Levinson’s deposition was necessary or appropriate, and that the deposition was unlikely to be relevant or proportional.

Ruling

The court granted the District Attorney’s motion to quash the subpoenas. The court separately stated that the results of any adverse internal investigation or disciplinary proceeding involving the defendant officers in connection with the incident might be subject to discovery. It explained that factual work product, including the results of a factual investigation, may have to be produced when a party shows substantial need and cannot obtain equivalent information elsewhere. If such an investigation or proceeding occurred and resulted in adverse findings, the court would consider a motion to compel production of pertinent documents not already produced. If no such investigation, proceeding, or adverse finding existed, the District Attorney’s Office could state that in a declaration or affidavit. Judge J. Paul Oetken directed the Clerk to close the motion at Docket No. 37.