IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS

Background

The plaintiffs in consolidated cases alleged that the City of New York, the New York City Police Department, and certain City employees violated constitutional rights during protests that began in May 2020. The People of the State of New York, represented by the New York State Office of the Attorney General, identified Dr. Edward R. Maguire as an expert witness.

In June 2020, the Mayor directed the City’s Department of Investigation and the Law Department’s Office of Corporation Counsel to review the New York City Police Department’s response to the protests. The Office of Corporation Counsel issued a report in December 2020 that discussed factors contributing to the protests’ intensity and made policy recommendations concerning department readiness, officer preparation, and coordination between agencies.

Dr. Maguire had been one of two outside experts consulted for that report. The record showed that he helped shape the review, participated in the review team’s internal discussions, reviewed internal memoranda and draft reports, gave feedback on policy recommendations, and helped create a strategic checklist for future protests. He had also signed an agreement requiring him to keep information obtained through that engagement confidential.

The Office of the Attorney General later retained Dr. Maguire as a testifying expert in the litigation. The City moved to disqualify him.

Legal standard

A federal court has inherent authority to disqualify an expert witness. Under the standard applied here, the City had to show that it reasonably believed it had a confidential relationship with Dr. Maguire and that it had disclosed confidential or privileged information to him that was relevant to the current litigation. The court also considered the public interest in preserving judicial integrity and fairness, along with the plaintiffs’ interest in using an expert with specialized knowledge.

The court explained that the deliberative-process privilege protects government materials reflecting recommendations, draft documents, and internal discussions used to formulate government decisions and policies. The privilege can apply to government consultants as well as government employees.

Court’s analysis

Confidential information. The court concluded that the drafts of the Corporation Counsel report, the review team’s memoranda, and Dr. Maguire’s discussions with City personnel were both predecisional—created to help officials make future decisions—and deliberative—reflecting the process of developing policy recommendations. The court held that this information was protected by the deliberative-process privilege and qualified as confidential information under the expert-disqualification standard.

The Office of the Attorney General argued that no court had previously relied on the deliberative-process privilege to disqualify an expert. The court rejected that argument, reasoning that the relevant question was whether the material was confidential under the expert-disqualification standard, not whether another court had used the same privilege in the same setting. The court also stated that the City did not need to make a separate showing of specific prejudice.

Relevance. The court found a direct connection between the confidential information and the litigation because both concerned the 2020 protests. Although the Office of the Attorney General said Dr. Maguire would testify about the effect of police tactics during the protests rather than later policy reforms, the court held that the disqualification analysis concerned the litigation as a whole. The City’s later policy review necessarily examined what had occurred during the protests, including the New York Police Department’s policies, training, preparation, and conduct.

The court further concluded that Dr. Maguire’s assertion that he did not remember the particulars of his discussions did not eliminate the risk that his testimony could be influenced by the information he had received. The court relied on the principle that people cannot reliably separate confidential information from later work simply by intending not to use it.

Public interest. The court balanced the public interest in judicial integrity and fairness against the plaintiffs’ interest in using Dr. Maguire and his specialized knowledge. It found that the Office of the Attorney General had identified another candidate with comparable experience, although that person was located in the United Kingdom, and that other policing-practices experts were available. The court therefore concluded that the plaintiffs’ preference for Dr. Maguire did not outweigh the need to prevent possible use of the City’s confidential information.

Disposition

The court concluded that no remedy short of disqualification would adequately protect the fairness and integrity of the proceedings. It granted the City’s motion to disqualify Dr. Maguire, Docket No. 312.