Douglas v. City of Peekskill

Background

The court considered letters from Marc Douglas and the nonparty County of Westchester. The County asked for an order requiring Douglas to return and destroy documents that it said had been inadvertently disclosed. Douglas asked permission to take a short deposition of former Assistant District Attorney Darcy Rydlun to preserve her testimony for trial, even though the discovery deadline had passed.

County’s claw-back request

The court identified the documents at issue as Exhibits 9, 11, 14, 19, 20, and 21 from Douglas’s March 15 response letter, along with Bates numbers 2206–2211 and 2647–2658. The court denied the County’s request concerning all of these materials.

For Exhibits 9 and 11, which contained handwritten notes by Assistant District Attorney Tim Ward, the court found that the County failed to object on the record when the documents were used during Ward’s deposition. The County’s attorney reviewed the documents and allowed testimony about them, including stating that one document was “fine.” The court held that, under these circumstances, any privilege or work-product protection had been waived.

The court also rejected the County’s argument that the disclosure was protected from waiver under Federal Rule of Evidence 502(b). That rule can protect an inadvertent disclosure when the disclosure was inadvertent, the privilege holder took reasonable steps to prevent it, and the holder promptly took reasonable steps to correct the error. The court found that the County’s document production was disorganized, that the County did not clearly identify the materials at issue, and that it did not promptly object during the deposition.

The court declined to claw back Exhibit 14 because it appeared to be a form accompanying a criminal case file and did not appear to contain privileged communications or work product. It declined to claw back Exhibit 19 because the document did not appear to contain privileged information or work product and was not on the County’s privilege log.

Exhibit 20 was a memorandum by former Assistant District Attorney Darcy Rydlun summarizing facts and grand-jury witness testimony in People v. Marc Douglas. The court held that any privilege had been waived because the document was used during the deposition without an on-the-record objection. The court also rejected the argument that the document was barred from disclosure as a grand-jury document. It found that the document was not a grand-jury exhibit or additional testimony, and that a prior order did not prevent its disclosure. In addition, the court found that Douglas had shown the required particularized need because the memorandum was relevant to assessing the accuracy of grand-jury testimony and the information provided to the District Attorney. The court noted that the underlying trial was over, weakening the need for secrecy.

The court declined to claw back Exhibit 21, an email chain involving the District Attorney’s office and third parties, because it did not appear to contain privileged information or work product. It also declined to claw back Bates numbers 2206–2211 and 2647–2658 because they were criminal-history and criminal-justice database documents that did not contain opinion work product and were not protected by the deliberative-process privilege. To the extent the County sought to claw back Exhibit 13, the court denied that request as well.

Deposition of Darcy Rydlun

The court granted Douglas’s request to depose Rydlun. It found that her testimony was relevant because she authored the memorandum about the grand-jury proceeding. The court limited the deposition to no more than two hours and required that it be conducted remotely. The court encouraged the parties to consider a written affidavit or stipulation because Rydlun reportedly told Douglas’s counsel that she had no independent recollection of the case.

The court agreed that Douglas’s counsel should have notified the County before contacting Rydlun, given Rydlun’s former role and the County’s representation of another assistant district attorney during the Ward deposition. But the court found that counsel appeared to have had a good-faith basis for contacting Rydlun and had identified himself before asking questions.

Disposition

Judge Victoria Reznik denied the County’s claw-back request and granted Douglas’s request to depose Rydlun, subject to the two-hour remote-deposition limit. The court did not rule on whether the filings should be sealed. Instead, it ordered the parties to submit a joint letter stating their positions on sealing specified filings by April 11, 2024.