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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

SANDRA M. MARSH,

Plaintiff,

-against-

HOWARD SAFIR, Commissioner,

New York City Police Department (NYPD);

PATRICK KELLEHER, First Deputy Commissioner, NYPD;

GEORGE GRASSO, Deputy Commissioner for Legal Matters, NYPD;

EUGENE S. DEVLIN, III, Assistant Chief,

Staten Island Patrol Borough Commander, NYPD;

PHILLIP ERICKSON, Executive Assistant to the

Staten Island Patrol Borough Commander, Deputy Chief, NYPD;

and the CITY OF NEW YORK, Defendants.

99 Civ. 8605 (JGK)(MHD)

2000 U.S. Dist. Lexis 5136

April 20, 2000, Decided

April 21, 2000, Filed

MEMORANDUM & ORDER

MICHAEL H. DOLINGER

UNITED STATES MAGISTRATE JUDGE:

Plaintiff Sandra Marsh is a former Deputy Commissioner in the New York City Police Department. She sues the City and senior Department officials, including Police Commissioner Howard Safir, charging that they forced her out of her position as the head of the Department's Office of Equal Employment Opportunity ("OEEO") in 1998 in retaliation for her approval of an investigative report by OEEO personnel that accused two senior police officials of misconduct.

In the course of the litigation the parties have deadlocked over the propriety of defendants' invocation of the attorney-client privilege, the work-product rule and the deliberative privilege to block certain inquiries by plaintiff's counsel at depositions. Also at issue is the refusal by defendants to produce several copies of internal OEEO reports that contain handwritten notations by the Police Department's Deputy Commissioner for Legal Affairs and another attorney employed by the Department.

Before we address these discovery disputes, we provide some context.

A. The Origin and Nature of This Suit

In the latter half of 1997 a number of New York City police officers and lower level supervisors assigned to the Staten Island command filed complaints with the Police Department's Office of Equal Employment Opportunity. (Am. Compl. at P21.) Of the eight separate complaints, one was by Officer Stacy Maher, who alleged that a male lieutenant named Joseph Monahan had sexually harassed her and that Monahan and a female sergeant named Jacqueline Smarsch had retaliated against her for complaining. (See OEEO Case No. 79s97, Log Nos. 357s97, 362s97, 565s97 n1). A second complaint, by Officer Maher and a lieutenant named Lloyd Thompson, alleged that they had been targeted for retaliation by Assistant Chief Eugene Devlin, who was the Commander of Patrol for Staten Island. (See OEEO Case No. 43s98, Log Nos. 547s97, 102s98). A third complainant, Officer Virginia Duffy, also charged that she had suffered sexual harassment and retaliation by Lt. Monahan (see Case No. 79s97, Log Nos. 314s97, 316s97), and another, Officer Ellen Perroth, charged that Monahan had retaliated against her for siding with Officer Duffy. (See Case No. 79s97, Log. No. 356s97). Still another complaint, made on behalf of eleven male officers, charged a Capt. Santo Scribani with retaliation against them for protesting against discriminatory treatment of Lt. Thompson. (See Case No. 43s98, Log Nos. 547s97, 69s98). A more recent complaint by two police officers--Vincent Giardello and Christine Gunning--alleged that they had supported Officer Maher's allegations and had therefore been threatened with retaliation by a Sgt. Gary White. (See Case No. 79s97, Log nos. 440s97, 441s97). Another, similar complaint by one of the same officers and a second officer, Salvatore Bonaventura, charged that Sgt. Smarsch had retaliated against them for befriending Officer Maher. (See Case No. 79s97, Log Nos. 400s97, 401s97). Finally, a Sgt. Gregory Cafaro, who identified himself as a supporter and friend of Officer Maher, complained that he had been subjected to retaliation by Lt. Thompson because he had complained of misconduct by Sgt. Smarsch. (See Case No. 79s97, Log. No. 403s97).

These administrative complaints triggered an investigation by OEEO. In the wake of the investigation, OEEO prepared a set of eight reports, which it issued on April 8 and 9, 1998. (Am. Compl. at P25). Each report corresponded to one of the eight complaints of harassment and retaliation. Prior to their issuance, the reports had been reviewed and approved by plaintiff, who was then the Deputy Commissioner, OEEO, and by the Commanding Officer of OEEO, Capt. Timothy Donovan. In substance, the OEEO reports rejected, as unfounded or unsubstantiated, all of the complaints except for the one by Maher and Thompson that Devlin had engaged in retaliatory behavior against them. (Id. at PP25-27). As to those allegations, the report found them to be substantiated. (Id. at P27). The report on that complaint also suggested that Devlin's Executive Assistant, Phillip Erickson, had lied to the OEEO investigators on a factual matter pertinent to Lt. Thompson's retaliation claim. (Id. at P36). In addition the OEEO concluded that there was substantial evidence that Maher herself had engaged in harassing conduct directed at Lt. Monahan, and it recommended that this evidence be referred to the Internal Affairs Bureau of the Department. (See OEEO Case No. 79s97, Log Nos. 357s97, 362s97, 565s97, at 17-19).

These reports, in their original and then consolidated form, were reviewed by Commissioner Safir and the Commander of his Office, Lowell Stahl, as well as by Deputy Commissioner George Grasso, who was the chief legal officer of the Department, and by various other senior Department officials. (Am. Compl. at P40). Ultimately Commissioner Safir ordered that the OEEO investigation be reopened and the report rewritten. (Id. at P45). At about the same time, Safir ordered that Marsh and Capt. Donovan be relieved of their duties at OEEO. (Id. at PP46, 47; Marsh Dep. at 115-116;). Their replacements conducted the follow-up investigation and prepared a new report, issued in September 1998, which exonerated the senior Staten Island officials in question and leveled some accusations at a few of the original complainants. (Id. at P54).

In the wake of these events, Ms. Marsh left the Police Department and filed this lawsuit. (Id. at P52). In her complaint, she alleges that she was stripped of her job responsibilities and constructively discharged in retaliation for having approved the findings that the Staten Island commander had engaged in retaliatory conduct against Maher and Thompson, and that his Executive Assistant had lied to OEEO investigators. (Id. at P57). She names as defendants the Police Commissioner, two Deputy Commissioners, the Staten Island Borough Patrol Commander, his Executive Assistant and the City of New York.

Six of the Staten Island officers who had filed the original OEEO complaints have commenced their own lawsuit, charging some of the same defendants, as well as others, with harassment and retaliation. That litigation is proceeding in a parallel fashion, with discovery continuing. Maher v. Monahan, 98 Civ. 2319 (JGK).

B. The Nature of the Privilege Dispute and Its Presentation to the Court

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C. The Evidentiary Record

The record, as reflected in the submitted affidavits and deposition transcripts, indicates that the eight OEEO reports issued in April 1998 were initially reviewed by Assistant Chief Lowell Stahl, who was the Commanding Officer of the Commissioner's Office. (Stahl Dep. at 71). Stahl passed the reports to the Commissioner with a memorandum from him suggesting that OEEO interrogate Officer Maher on her suspected misconduct. (Id. at 79, 89-90). He also recommended consulting with Deputy Commissioner Grasso, the senior lawyer in the Department, as to the propriety of this approach. (Id. at 91).

Commissioner Safir reviewed the reports. According to defendants, he was doubtful of the evidentiary basis for the accusations against Devlin and Erickson, and concerned about whether criminal charges could or should be pressed against Maher at a time when she was an EEO complainant. (See Affidavit of Police Commissioner Howard Safir, sworn to Feb. 22, 2000, at P3; Affidavit of Deputy Commissioner George A. Grasso, sworn to Feb. 22, 2000, at P3). n6 Safir therefore consulted Grasso, who proceeded to review the reports, as did his deputy, Deborah Zoland, Esq. (See Safir Aff. at P4; Grasso Aff. at PP3, 4; Zoland Dep. at 56). In the course of their review, the two lawyers made a number of handwritten notes on their respective copies of the reports. (See Affidavit of Deborah L. Zoland, sworn to Feb. 22, 2000, at 8; Zoland Dep. at 63).

According to Grasso and Zoland, they both concluded from their review that there were evidentiary and organizational problems with the reports. (Grasso Aff. at P6; Zoland Aff. at P9). Grasso reported these conclusions to Safir, and they decided that OEEO should be directed to conduct some additional interviews and to refashion the reports to make them clearer. To implement this decision, Grasso and Zoland prepared a memorandum, addressed to plaintiff, which was ultimately signed by Stahl on behalf of the Commissioner's Office. (Zoland Aff. at P9; Stahl Dep. at 141-42). In the memorandum, Stahl directed that the eight reports be consolidated and that some witnesses be interviewed or reinterviewed. (Stahl Dep. at 102). OEEO then conducted one or more additional interviews and consolidated the eight reports into one document, which was supplied to the Commissioner in May 1998. (Dep. of Sandra M. Marsh, Jan. 12 & 13, 2000, at 425).

In the wake of the submission of this single report, OEEO was directed to make a formal oral presentation of its findings to Commissioner Safir. (Marsh Dep. at 403, 404; Dep. of Timothy Donovan, January 6 & 7, 2000, at 429; Safir Aff. at P5). This so-called presentation meeting, which took place on May 22, 1998, involved plaintiff, Capt. Donovan and Lt. German Velez, the principal investigator for OEEO. (Marsh Dep. at 413-14; Donovan Dep. at 432). During the presentation, Donovan and Velez were aggressively questioned or challenged principally by Grasso and also by First Deputy Commissioner Patrick Kelleher, with Commissioner Safir, Assistant Chief Stahl and Richard J. Scheirer in attendance. As described by plaintiff and by Donovan, Grasso repeatedly interrupted the presentation to express anger or irritation that the OEEO report did not credit the interview statements of Devlin and Erickson, and thus put in jeopardy their long careers in the Department. (Marsh Dep. at 405-6, 409-10; Donovan Dep. at 435-444).

Following the presentation meeting, Safir asked the non-OEEO attendees to remain for purposes of discussion after the OEEO representatives, including plaintiff, had left. (Donovan Dep. at 448; Grasso Aff. at P10). According to the affidavits of both Grasso and Safir, at the follow-up meeting the three non-lawyer participants asked questions of Grasso to elicit his views as to the issues raised, particularly the sufficiency of the evidence supporting the findings against Chief Erickson, and he responded to those questions. (Grasso Aff. at P10; Safir Aff. at P7). Grasso and Safir indicate that the other participants at the meeting, none of whom were lawyers, then expressed their views on the same topics. (Grasso Aff. at P10; Safir Aff. at P7).

Within days following this meeting, plaintiff was advised that the Commissioner had decided that the entire Staten Island investigation would be redone, and that she and Donovan were to be replaced on the investigative team. (Marsh Dep. at 213; Donovan Dep. at 426). Ultimately, both were removed from any responsibility for OEEO matters. Donovan was later transferred to what he viewed as a series of dead-end jobs in the Department, and plaintiff left the Department entirely. (Donovan Dep. at 217, 413; Marsh Dep. at 211-213).

ANALYSIS

On the current motion defendants are invoking the attorney-client privilege, the work-product rule, and the deliberative privilege in support of their objections to a variety of deposition questions posed by plaintiff's counsel as well as in support of their refusal to produce the marked-up copies of the OEEO draft reports. Before assessing these claims, we briefly summarize the applicable legal standards.

A. The Governing Criteria

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1. The Attorney-Client Privilege

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2. The Work-Product Rule

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3. The Deliberative Privilege

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B. Assessment of Defendants' Privilege Claims

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CONCLUSION

In conformity with the criteria outlined in this Memorandum and Order, the parties are to resume their depositions as promptly as possible. Counsel are to submit to the Court within seven days a joint proposed schedule for completion of all deposition discovery. If they cannot agree on such a schedule, they are to advise the Court, and we will conduct a scheduling conference.

New York, New York

April 20, 2000

MICHAEL H. DOLINGER

UNITED STATES MAGISTRATE JUDGE

Notes: (Notes from redacted material omitted)

1. The case and log numbers are taken from the eight reports prepared by OEEO dated either April 8 or April 9, 1998. (See infra p. 3).

6. We note that although the affidavits were submitted on an in camera basis, the level of detail contained in our summary of the facts in this publicly filed opinion is consistent with the information that defendants have disclosed to plaintiff in the redacted versions of the affidavits and in their memoranda of law. (See, e.g., Grasso Aff. at 1, fn.*; Defs.' Mem. at 3-4).

9. In camera review is not favored in cases of military or national security, although not absolutely barred. See, United States v. Reynolds, 345 U.S. 1, 10, 97 L. Ed. 727, 73 S. Ct. 528 (1953) (cited in Nixon, 418 U.S. at 710-11).

12. For example, and speaking only hypothetically, if Grasso made any comments to the effect that senior management should stick together or that plaintiff should be punished or made an example merely because she had challenged the conduct of senior officials, the argument for treating such statements as privileged would be quite thin. Such statements would not be consistent with an attorney's performance of legal services as distinguished from an agency official's expression of personal views about the value of institutional loyalty or the need to conceal problems within the Department. Such statements might well also be discoverable because they would constitute the very acts that are the basis for plaintiff's retaliation claims, and hence the pleadings would have put them in issue under standards that the Second Circuit has recognized as waiving the privilege. See, e.g., United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.), cert. denied, 502 U.S. 813, 116 L. Ed. 2d 39, 112 S. Ct. 63 (1991); Pereira v. United Jersey Bank, 1997 U.S. Dist. Lexis 19751, 1997 WL 773716, at *2 (S.D.N.Y. Dec. 11, 1997).

Plaintiff also argues that such statements would come within the scope of the crime-fraud exception to the privilege insofar as some courts have extended that exception to cover acts of deliberate discrimination or related misconduct. (See Pl.'s Mem. at 7 n.2). We need not address that point now since plaintiff, who has the burden of proof to show the applicability of that exception, has not proffered evidence that would satisfy that burden.

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