Douglas v. City of Peekskill

Background

Marc Douglas sought disclosure of factual attorney work product contained in documents on the County of Westchester’s privilege log. The County argued that the documents were protected opinion or core work product—materials reflecting attorneys’ mental processes—and by the deliberative process privilege, which can protect certain predecisional government discussions. The court reviewed the disputed documents privately, without disclosing them to the parties.

The County also asked for an attorney’s-eyes-only restriction on highlighted portions of Douglas’s New York State Department of Corrections and Community Supervision records. The County said those portions contained information from confidential informants about Douglas’s behavior while incarcerated. Douglas opposed the restriction, while not objecting to treating the records as confidential under the existing confidentiality order.

Work-Product Rulings

The court placed the documents into three categories:

1. Documents disclosed in full. The County was ordered to disclose Documents 113, 15, 194, 20, 29, 33, 34, 35, 43, 45, 67, 69, 72, 83, 93, and 100 in their entirety, subject in some instances to existing sealing restrictions and Judge Paul Davison’s March 10, 2023 order. The court found these materials to be factual records, including criminal-history records, a conviction chart, chain-of-custody notes, and a probation-history file, rather than opinion work product. The court also found that they were not protected by the deliberative process privilege.

2. Documents disclosed with redactions. The County was ordered to disclose Documents 3, 4, 21, 23, and 91 after redacting specified opinion work product. The redactions covered attorneys’ mental processes, legal opinions, plea offers, orders of protection, and preparatory questions for a witness. For Document 91, the County was also directed to review material labeled C.O.W. 02024–02031, which appeared to be a grand-jury transcript, and not to disclose it if doing so would conflict with Judge Davison’s March 10, 2023 order.

3. Documents not ordered disclosed. The court did not order disclosure of Documents 5, 6, 22, 36, 41, 42, 44, 68, 73, 74, 75, 76, 79, 80, 89, 98, 101, and 102. It found these documents to consist entirely of opinion work product, including trial-preparation notes, plea-strategy notes, an email concerning plea strategy, an email concerning positions about an order of protection, attorney trial-preparation notes, and notes about case disposition.

The court questioned whether the deliberative process privilege applied because the communications appeared to concern handling one particular defendant’s case rather than an agency policy. It also noted that the County had not shown that the privilege had been asserted by the head of a government agency. The court stated, however, that resolving that issue was unnecessary because factual portions had to be disclosed and severed or redacted from protected material when necessary.

Attorney’s-Eyes-Only Request

The court explained that informer’s privilege can protect the identity of people who provide information about legal violations to law-enforcement officials and can support an attorney’s-eyes-only restriction. But the privilege ends when the informer’s identity has been disclosed to people who could object to the communication. Here, the relevant portions of the inmate file had already been disclosed by the state corrections agency and the Supreme Court of Westchester County. The court therefore concluded that the informer’s privilege had disappeared and that an attorney’s-eyes-only provision would not be imposed.

Order

On or before August 18, 2023, the County was ordered to make the disclosures required by the opinion. It was also directed by Judge Victoria Reznik to send a representative to retrieve the documents submitted for private review or otherwise inform the court about their disposal.