IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS

Background

The consolidated cases involve allegations that the City of New York, the New York City Police Department, and certain City employees violated constitutional rights during protests beginning in May 2020.

The People of the State of New York, represented by the New York State Office of the Attorney General, designated Dr. Edward R. Maguire as an expert witness. The City moved to disqualify him because it had previously retained him in 2020 to assist a special team in the City’s Law Department’s review of the New York City Police Department’s response to the June 2020 protests. Dr. Maguire advised the review team on policing protests, crowd psychology, behavioral science, and related issues; helped prepare the review report; and reviewed and endorsed its recommendations.

Dr. Maguire had signed a confidentiality agreement and had access to confidential documents from the New York City Police Department and other City agencies. The People later informed the City that they intended to retain him as an expert in this litigation and confirmed that retention after discussions in which the City objected.

Magistrate Judge’s Order and Standard of Review

Magistrate Judge Gorenstein granted the City’s motion to disqualify Dr. Maguire. The district court reviewed the People’s objections under Federal Rule of Civil Procedure 72(a), which permits changing a magistrate judge’s order on a non-dispositive matter only when it is clearly erroneous or contrary to law. The court also stated that it agreed with the magistrate judge’s decision even under the more searching standard that applies to dispositive matters.

Disqualification Standard

The court explained that a party seeking to disqualify an opposing expert who was previously retained by that party must show: (1) an objectively reasonable belief that a confidential relationship existed with the expert; and (2) that confidential or privileged information relevant to the current litigation was disclosed during that relationship. Courts may also consider the public interest in allowing or preventing the expert from testifying.

The People’s Objections

The People argued that the City had to make a separate showing of actual or potential prejudice. The court rejected that argument. It held that when the moving party establishes the required confidential relationship and relevant confidential disclosures, the law does not impose an additional requirement to prove specific prejudice. The court explained that prejudice is presumed when a former expert received relevant confidential information that could be revealed, intentionally or unintentionally, in a later case against the former client.

The People also argued that the magistrate judge should have considered remedies less severe than disqualification, citing the importance of the litigation and Dr. Maguire’s expertise. The court rejected that objection as well. It held that the public interest in lawful protest policing did not outweigh the public interest in protecting the integrity of judicial proceedings. Because Dr. Maguire had been retained by the City to investigate the same subject matter involved in the litigation, the magistrate judge properly determined that he could not realistically separate the confidential information learned during his earlier work from information obtained for this lawsuit.

Disposition

Judge Colleen McMahon denied the People’s Rule 72 objections and affirmed the magistrate judge’s order granting the City’s motion to disqualify Dr. Maguire as an expert witness.