IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS
- Colleen McMahon
- 1:20-cv-08924
- U.S. District Court · Southern District of New York
- 3
In Re: New York City Policing During Summer 2020 Demonstrations: Magistrate Judge Gorenstein did not permit two proposed depositions because they were largely irrelevant and burdensome.
The ruling affected the plaintiffs’ ability to depose Ernest Hart and Oleg Chernyavsky and reduced the discovery burden on the City and those proposed deponents.
What happened
In In Re: New York City Policing During Summer 2020 Demonstrations, the plaintiffs sought to depose Ernest Hart and Oleg Chernyavsky, former New York City Police Department legal officials, about policing decisions, curfews, and legal advice during the 2020 demonstrations.
The court found that the plaintiffs had not shown that either person could provide important, non-repetitive testimony. It also found that much of the proposed questioning concerned privileged legal matters, how attorneys developed their advice, or information available from other sources. The court considered the burden, the number of depositions, lack of proportionality, and low relevance.
Magistrate Judge Gabriel W. Gorenstein exercised the court’s discretion not to permit the depositions of Hart or Chernyavsky.
The detailed version
- IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS · No. 1:20-cv-08924
- Colleen McMahon
- June 8, 2023
Background
The court considered the parties’ latest letters about the plaintiffs’ proposed depositions of Ernest Hart, a former Deputy Commissioner of Legal Matters, and Oleg Chernyavsky, a former Assistant Deputy Commissioner of Legal Matters. The letters supplemented earlier briefing concerning the City’s motion for a protective order.
The case involves whether the City and its employees engaged in illegal policing actions during the 2020 demonstrations and what City policies were, or should have been, in effect for mass protests in 2020 and afterward.
Reasons for the Ruling
The plaintiffs sought testimony about Hart’s understanding of, and conversations concerning, curfew executive orders and decision-making during the protests. They also sought information about the NYPD Legal Bureau’s role, legal advice concerning arrests of legal observers, and high-level discussions about that advice.
The court concluded that the plaintiffs had not provided enough evidence that Hart or Chernyavsky had a non-legal policymaking role. Although Hart had attended some high-level meetings and had communicated the Department’s position on policing matters in several instances, the court found little value in deposing him or Chernyavsky merely to test the City’s position that they acted as attorneys.
The court further explained that the relevant issues were the content of directives and legal advice, and how recipients understood and implemented them—not the attorneys’ internal process for developing that advice. Even if disclosure of advice had waived attorney-client privilege, the court stated that the waiver would permit examination of protected communications between attorney and client, not questioning the attorneys about how or why they reached their advice. The court also found that other proposed topics were irrelevant or could be addressed through other witnesses.
Disposition
Magistrate Judge Gabriel W. Gorenstein exercised the court’s discretion not to permit the depositions of Hart or Chernyavsky. The court relied on the number of depositions already taken or expected, the burden on the City and the proposed deponents, the likelihood of privilege objections, the lack of proportionality, and the minimal or nonexistent relevance of the proposed testimony.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.