Galgano v. County of Putnam, New York

Background

The Individual County Defendants, referred to in the order as the ICDs, filed a motion asking the court to compel the non-party Westchester County District Attorney’s Office (WCDAO) to produce additional documents responsive to a subpoena. WCDAO withheld 20 documents identified on its privilege log as “core work product.” Core work product consists of an attorney’s mental impressions, conclusions, opinions, or legal theories and receives a high level of protection from compelled disclosure.

WCDAO submitted the 20 documents for the court’s review as needed to confirm the privilege-log descriptions. The ICDs did not dispute the core-work-product designation. Instead, they argued that they had a substantial need for the documents because they went to the heart of the litigation. They also argued that WCDAO waived work-product protection by selectively disclosing some work-product materials while withholding others.

Court’s analysis

The court rejected the ICDs’ view that the WCDAO documents went to the heart of the case. It explained that the central question was whether Putnam County authorities properly investigated and prosecuted Galgano, not whether Westchester County authorities believed that they had done so. WCDAO’s conclusions from its parallel investigation, even though favorable to Galgano, were not dispositive of that question.

The court therefore found that the ICDs had not overcome the high degree of protection given to core work product. It also rejected the waiver argument because WCDAO was a non-party and was not the ICDs’ adversary in the litigation. The court found no basis to conclude that WCDAO had deliberately, affirmatively, and selectively used privileged work-product materials in a way that would support waiver.

Ruling and remaining matters

The court denied the ICDs’ motion to compel production of the documents listed on WCDAO’s privilege log. It expressly did not reach WCDAO’s alternative assertion of deliberative-process protection. The court said it was unclear whether WCDAO had withheld additional documents and, if so, on what grounds; it was also unclear what position WCDAO took regarding a second subpoena the ICDs proposed to serve. Judge Paul E. Davison ordered counsel for the ICDs and WCDAO to attend a remote conference on June 8, 2021, and requested that the Clerk close the motion docket entry.

The ICDs also requested an order unsealing the record of an ex parte proceeding in Westchester County Court. The order stated that such a request ordinarily should be directed to the state court as a matter of comity. It further stated that, if the ICDs believed a particular judge had a conflict of interest, they could request referral to another judge.