IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS

Background

This discovery order addressed two applications arising from earlier rulings about law-enforcement privilege and deliberative-process privilege. The plaintiffs identified four additional documents for the court’s confidential review. The City also submitted three documents that it had withheld or redacted based on deliberative-process privilege.

Law-Enforcement Privilege

After reviewing the four documents, the court held that all four were protected by law-enforcement privilege. The court found that two documents concerned information from an undercover source or confidential informant and could undermine source confidentiality or future investigations. It found that the other two documents contained information that could undermine the privacy of people involved in investigations.

The court also found that the plaintiffs had not shown a sufficient need to overcome the privilege. It explained that one document concerned a June 8, 2020 anticipated protest rather than the June 4, 2020 Mott Haven protest identified by the plaintiffs, and another concerned a June 7 protest. The fourth document concerned information about a protest held the day before the email and therefore had little or no value for evaluating evidence about threats at that protest.

Deliberative-Process Privilege

The court found that one redacted document contained discussions about creating a policy and therefore was protected by deliberative-process privilege. The court also found no separately producible factual information in the redacted portion.

The court reached the opposite conclusion for a second redacted document. It found that the redacted material did not involve policymaking or a particular agency decision. Instead, it concerned preparation for a specific event and resembled routine operating decisions. The court therefore held that deliberative-process privilege did not apply and ordered the document produced without redaction.

The City had fully withheld a third document under both deliberative-process and law-enforcement privileges. The court found that the document was predecisional and deliberative because it contained recommendations, proposals, and suggestions reflecting the writer’s personal opinions. The order does not separately state a production directive for that document.

Other Scheduling Ruling and Disposition

The court advanced the deadline for any motion concerning preclusion to March 28, 2023. Magistrate Judge Gabriel W. Gorenstein ordered the defendants to produce document DMNL00303_000252160 / DEF-E_000058498 without redaction by March 13, 2023.