IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS

Background

The order addresses a discovery dispute identified in Docket Numbers 773, 791, and 795. The plaintiffs sought discovery about video sources beyond the ARGUS, Aviation, TARU, and body-worn-camera footage that the City had produced. They also sought additional information about the preservation and loss of ARGUS and Aviation footage.

Video-source discovery

The court stated that a party seeking “discovery on discovery”—information about how another party searched for and produced evidence—must provide an adequate factual basis, and that the request must be closely examined because discovery can become burdensome and prolonged. The court accepted the City’s assertion that identifying all possible video sources controlled by all City agencies would be unduly burdensome.

Rather than require that broad inquiry, the court focused on video sources normally accessed by the New York City Police Department when investigating outdoor criminal activity or analyzing its own outdoor operations. The current record suggested that these sources were the ones already produced, possibly excepting video from Department of Transportation cameras.

The court ruled that the City did not need to educate and produce a witness about video sources available to every City agency. Instead, within seven days, the City had to answer what video under the control of any City department is normally sought by the Police Department for investigations of outdoor incidents. The City could provide the answer through a sworn statement or a witness designated under Federal Rule of Civil Procedure 30(b)(6). The parties could agree to change the deadline without another court order.

If the answer identified sources not yet produced, the plaintiffs were entitled to basic, nonburdensome information about those sources, such as camera locations in relation to the demonstrations, storage periods, and efforts to preserve relevant footage for the litigation.

ARGUS and Aviation footage

The court observed that the defendants appeared to have already provided some information about ARGUS preservation efforts and lost footage, but the plaintiffs’ initial letter was unclear about what additional ARGUS information they wanted. The court also observed that the City appeared not to object to additional information about Aviation footage and that the parties had not sufficiently conferred on that issue.

The parties were directed to confer specifically about the additional information sought for ARGUS and Aviation footage. If they could not resolve the dispute, the plaintiffs could submit a new application identifying the requested information for each source. The court indicated that two questions in the plaintiffs’ reply letter appeared to seek information to which they were entitled, while noting that it had not seen the City’s response to those questions.

Method of providing information and ruling

The court said that depositions on written questions were the least practical method. It stated that the usual method should be either a Rule 30(b)(6) witness or a sworn statement from the City. If the information was known to the City’s attorneys, an attorney letter binding the City to the stated facts could also be appropriate.

The order did not decide whether the plaintiffs had a basis for a motion seeking sanctions for destruction or loss of evidence. Judge Gabriel W. Gorenstein expressly stated that requiring the City to provide information should not be understood as suggesting that such a motion was justified.