The Brooklyn Branch of the National Association for the Advancement of Colored…

Background

The plaintiff moved for reconsideration of the court’s ruling at the February 22, 2024 final pretrial conference admitting State Board Defendants’ Exhibit D-22. The exhibit is a 76-minute video recording of the plaintiff’s September 22, 2021 general membership meeting. During the meeting, an attorney for the plaintiff responded to members’ questions and comments concerning the line-warming ban and the litigation. State Board Defendants disclosed the video to the plaintiff’s counsel on February 21, 2024.

The parties disputed whether the plaintiff violated its discovery obligations by not producing the video earlier. The court reviewed the plaintiff’s explanation and found that any noncompliance was inadvertent. It therefore concluded that the late production did not affect the decision on reconsideration.

Plaintiff’s arguments

The plaintiff argued that the attorney’s statements were not statements of the organization because the attorney was speaking to the plaintiff’s leadership and members rather than speaking on the organization’s behalf. It characterized the statements as inadmissible hearsay—out-of-court statements offered for their truth—and argued that they were casual conversations outside the management of the litigation.

The plaintiff also argued that the statements were legal theories, arguments, or conclusions rather than factual admissions that could be introduced as evidence at trial.

Court’s analysis

The court agreed that the plaintiff accurately described the legal standard for reconsideration but disagreed with the plaintiff’s application of that standard to the facts. The court found that the plaintiff had sought legal advice from the Elias Law Firm about the line-warming ban, received that advice, and allowed its members to question counsel about the statute and the litigation.

The court further found that the plaintiff posted the meeting on its public-facing Facebook site. In the court’s view, this public disclosure both showed the plaintiff’s adoption of the legal advice and waived the attorney-client privilege that might otherwise protect confidential communications. The court also found the cases cited by the plaintiff concerning the admissibility of counsel’s statements factually inapposite.

The court stated that admitting Exhibit D-22 did not determine whether, or for what permissible purposes, it would consider the exhibit’s contents in resolving the issues at trial.

Disposition

Judge Katherine Polk Failla denied the plaintiff’s motion for reconsideration and directed the Clerk of Court to terminate the pending motion at docket number 100. The opinion does not state that the court finally resolved the underlying issues in the case.