IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS

Background

The court considered the parties’ letters about a proposed confidentiality order. The order would establish a process for designating discovery materials as confidential and resolving later disputes about those designations.

Personnel, disciplinary, and investigation records

The defendants proposed adding New York City Police Department personnel and disciplinary records, along with records of investigations into the conduct of department members by the department, the Civilian Complaint Review Board, or other agencies, to the definition of “Confidential Materials.”

The court rejected that addition. It explained that parties may designate material as confidential when they have a good-faith basis to believe the material is protectible under Federal Rule of Civil Procedure 26(c)(1). The court said the parties did not need to agree in advance that entire categories of documents were protectible, particularly because the listed categories could require different treatment.

Freedom of Information Law

The defendants proposed changing language stating that materials could not be designated confidential when they “can be obtained” under New York’s Freedom of Information Law or are otherwise publicly available. They proposed replacing “can be” with “are.”

The court refused that change and deleted the reference to the Freedom of Information Law entirely. It reasoned that the parties could not know which documents had actually been obtained through that process by all parties. The court stated that the phrase “publicly available” was sufficient.

Separable portions of documents

The defendants proposed removing a requirement that, when a confidential portion of a document could reasonably be separated from a nonconfidential portion by redaction or another method, only the confidential portion would be designated. The court kept that requirement. It stated that only material meeting Rule 26(c)(1)’s requirements could be designated confidential and that material not meeting those requirements should not be designated confidential.

Ruling and effect

Judge Gabriel W. Gorenstein ordered the proposed changes described above. He also made other revisions that he said should have no substantive effect. Any objection to those revisions could be raised under the court’s individual practices. The opinion addressed the handling of discovery materials and did not decide the underlying claims in the related cases.