On Thursday, a federal judge threatened the administration of New York Mayor Bill de Blasio with sanctions if it doesn’t begin producing documents related to police conduct during last summer’s George Floyd protests.
After the New York Police Department kettled, beat, pepper-sprayed, punched, shoved, rammed, and arrested people protesting against police violence, many of the victims decided to sue, along with the attorney general of New York. Those lawsuits against de Blasio, the city, and the NYPD, including the leadership and individual police officers, have all been consolidated together and put on an accelerated schedule by Judge Colleen McMahon, who intends to have the case ready for trial early next year.
Although deadlines in the case are looming, lawyers for the city and the police have responded to only a tiny fraction of the documents requested by protesters in their discovery requests, hampering their ability to learn exactly what the NYPD did and to hold them to account.
“Courts are an important way to hold the police accountable, and lawsuits like this are an important way for the public to see what police misconduct has happened on a widespread basis,” said Jenn Rolnick Borchetta, managing director of the Impact Litigation Unit for the Bronx Defenders, who is frequently involved in lawsuits against the NYPD but is not representing anyone in the protest-related cases. “If plaintiffs are not able to get information through the litigation process, then their ability to hold police accountable, and to get justice itself, is undermined.”
Lawsuits around the behavior of police during mass protests can often stretch across years, even a decade, but in her first hearing for the consolidated cases in February, McMahon made it clear that she was taking a different approach. She was putting the cases on a “rocket docket,” she said. “I don’t like cases to hang around for a long time.”
Discovery — the production of relevant evidence — itself often takes years in cases like this, but McMahon set a December 31 deadline for all discovery production. The parties would also need to have exchanged enough evidence to name their expert witnesses by July 1, produce those experts’ reports by September 1, and file their arguments over whether the protesters can sue as a class action by September 10.
With the tight deadline and the city dragging its feet, plaintiffs’ lawyers are worried they won’t have time to properly review materials ahead of each stage of the case — potentially severely damaging their efforts.
Months of Inaction
The city and police department’s failure to produce discovery materials has been ongoing for months. At the end of March, the plaintiffs asked the city for all the evidence they wanted turned over: police records; the names of the officers and commanders assigned to all the relevant protests; communications with the mayor’s office; training materials; body camera footage. The request was a massive list stretching nearly 50 pages. A month later, city lawyers responded, objecting to many of the requests. The plaintiffs wrote back that most of those objections wouldn’t hold up and asked for a meeting, but city attorneys said they couldn’t meet for more than a week.
When the lawyers did finally meet toward the end of May, nearly two months after the first discovery requests, the city lawyers still hadn’t turned any documents over. They promised to begin doing so on a weekly basis. Then nothing happened. No weekly document deliveries, no discovery of any kind, except for some police body camera videos that the protesters’ lawyers insisted on receiving as a condition of letting their clients be deposed.
By June 9, the plaintiffs’ lawyers were getting angry. They had three weeks left to designate their expert witnesses, but they had nothing to help them decide what kind of experts they would need — and nothing to show those prospective experts. Exasperated, they wrote the magistrate judge overseeing discovery in the case, asking him to make city lawyers start turning things over. The lawyer overseeing the case for the city, Dara Weiss, responded with her own letter, arguing that the protesters’ attorneys were violating professional standards of civility by continuing to raise their discovery concerns even after hackers had forced the New York City Law Department to restrict most access to its electronic systems on June 6, limiting the department’s ability to respond.
At a June 15 meeting before Magistrate Judge Gabriel Gorenstein, Weiss promised that discovery production really was about to get underway. Gorenstein ordered her to write a letter explaining precisely what steps she was taking to provide all the records the protesters needed to mount their case. Later that week, Weiss wrote a letter that shed little light on that process and provided a mere 26 of the requested discovery documents. The plaintiffs asked for another meeting with Gorenstein.
At that meeting, on Thursday, Gorenstein began with a warning: He had spoken with McMahon, the trial judge, for whom he was running discovery in the case. “She wants me to advise her whether any party is being recalcitrant about discovery,” Gorenstein said. “She’s fully prepared to enter sanctions or orders of preclusion against any party who’s being recalcitrant about discovery.”
Time and again throughout the hearing, Weiss was unable to answer the judge’s basic questions about the city’s plans to cooperate with discovery in the case. How many documents was the city prepared to turn over in its first major discovery delivery next week? “I don’t have that number in front of me.” How many city attorneys will be working on getting the hundreds of thousands, perhaps millions, of documents ready for discovery? “That’s part of what we’re trying to determine now.” Has the NYPD even given the city lawyers documents related to a previous investigation of police conduct by the city’s Department of Investigation? “I can’t right now, as we sit here at this moment, 100 percent guarantee that.”
Gorenstein was taken aback by Weiss’s answers. “It’s your responsibility to know,” he told her. “The city is putting itself at risk in terms of how the delay is going to be treated. I want to remind you again: The city is at risk of preclusion and other sanctions.”
“The city is putting itself at risk in terms of how the delay is going to be treated.”
Pressed, Weiss did ultimately estimate that the city had roughly 50,000 documents in hand and was reviewing them. She promised that next week the city would turn over a “substantial” number of records — thousands of documents, she guessed. Gorenstein was not satisfied. He ordered Weiss to begin weekly discovery dumps and to file weekly letters explaining her progress, how many staffers she has working on turning over documents, and what specific efforts she’s making to retrieve documents she hasn’t yet provided. (The city’s Law Department did not immediately respond to a request for comment.)
Weiss promised the court the city would be able to meet its discovery deadline, but some of the lawyers for the plaintiffs were skeptical. “As a matter of linear time and math, it is physically impossible for them to produce the documents they need to in the time remaining,” said Remy Green, an attorney working on one of the consolidated cases, after the hearing. “Given what the judge said in the conference, I don’t see how sanctions are avoidable. But I’d be thrilled to be pleasantly surprised.”
Still, the plaintiffs’ lawyers say they were generally encouraged by the hearing. “Today was important because the judge made it clear that vague promises aren’t enough,” said Rob Rickner, one of the plaintiff’s lawyers. “Having a judge mention sanctions right at the beginning of a case is remarkable.”
The day after the hearing, with the city lawyers’ consent, McMahon agreed to move back some of the pressing deadlines. On the plaintiffs’ memo requesting the deadlines be pushed back, the trial judge scribbled a handwritten note: “Judge Gorenstein strongly recommended that I grant this extension, so I will.”
This isn’t the first time that Weiss has been in trouble with the court for failing to turn over documents. In 2012, she was sanctioned and fined for withholding documents in a lawsuit against the city brought by a man beaten in Rikers Island, the notorious New York City jail complex. In that case, Weiss and her staff repeatedly dragged their feet in producing critical evidence, making promises they did not deliver on, pleading ignorance about important details, arguing that partial disclosures were adequate, and ultimately defying court orders. As part of the penalty, Weiss and another city lawyer were each fined $300.
People familiar with how New York City defends against lawsuits based on NYPD abuses said delays and failure to turn over documents are hardly unique to Weiss — and they’re not accidents or indications of incompetence. Instead, the foot-dragging, when the feet move at all, is a constant element of the New York City Law Department’s strategy any time they’re asked for documents related to the NYPD.
“People injured by the NYPD and seeking redress through the courts face an uphill battle in getting the Law Department to turn over information needed to litigate a case all the time,” said Borchetta, the Bronx Defenders lawyer. “This is not a new thing. This stretches across multiple administrations.”
Often, Borchetta said, the justifications the Law Department puts forward to explain its refusal to turn over documents are laughable and certain not to hold up if challenged. In a case she’s working on now, the Law Department attempted to claim that it didn’t have to turn over the training documents officers receive on a law that proscribes releasing people’s sealed arrest records, arguing that training was effectively legal advice and protected by attorney-client privilege. Borchetta challenged that claim and won. The victory, she said, was but a drop in the bucket.
“It’s a strategy of grinding up time. They assert these ridiculous arguments on enough of these matters, we only have enough time to challenge some of them.”
“Litigating that issue took a month,” Borchetta said. “So it’s a strategy of grinding up time. They assert these ridiculous arguments on enough of these matters, we only have enough time to challenge some of them. And on the rest, those are documents they were able to keep secret.”
Darius Charney, senior staff attorney at the Center for Constitutional Rights, faced off against the Law Department when he litigated the yearslong stop-and-frisk trial Floyd v. City of New York. “We probably filed at least half a dozen or more discovery motions over the course of that case, either because [the] city was objecting to producing things, or saying they couldn’t, or fighting over whether things should be produced under confidentiality orders,” Charney said. “Discovery ended up taking three years, and a lot of the reason it took so long was because of all those fights. We had to spend months litigating to get them to produce stop-and-frisk data they’d already produced in a previous lawsuit.”
In another case, the mother of Barrington Williams brought a suit against the NYPD when her son died in 2013 after police wrestled him to the ground in a Bronx subway station because they suspected him of selling MetroCard swipes. When Williams’s mother was pushing for discovery, the city’s lawyers told her that critical police records had been accidentally destroyed, even though the NYPD was legally required to preserve them for the pending litigation. When the judge on the case ordered the city to produce a sworn affidavit explaining how the records came to be destroyed, the missing evidence suddenly appeared.
The judge became curious. What had gone wrong in this discovery process? Ultimately, it was revealed that the NYPD had only conducted a very literal-minded search for the records in the precise and inappropriately narrow place the Law Department had asked them to look, rather than conducting a thorough search as the law requires.
The result was a perfect black hole of information. The Law Department could truthfully say it had asked its client, the NYPD, to search for the records. The NYPD could truthfully say it had conducted that search and hadn’t found anything, even though the records were sitting in an easily accessible and searchable database the whole time. When the judge began pressing officials to make sworn affidavits explaining themselves, the city lawyers took the blame, and the NYPD suffered no penalty.
“The City attempts to foist the blame on the Law Department for having never requested these files,” lawyers for Williams’s mother wrote the court afterwards. “But that only obscures the root cause of the City’s discovery failures: that the City’s discovery practices are deliberately indifferent to the obligation to preserve and produce relevant evidence in the City’s possession.”
The federal judge in the case, Kevin Castel, was enraged at the NYPD and its in-house lawyers in the Legal Affairs Bureau. “It is only when someone from the Legal Affairs Bureau or some person within the NYPD is going to have to put their name on a declaration and under penalty of perjury, and if they are lying, they can go to jail and lose their job, that we get accurate information,” he said. He wondered “whether there aren’t a ton more cases” in which critical evidence was somehow lost to plaintiffs in the murky back-and-forth between the police and city lawyers.
Perhaps significantly for the current protest cases, the magistrate judge working under Castel as the city’s withholding of crucial evidence unraveled was Gorenstein. Gorenstein wrote of the case that he viewed the Law Department’s delay and inaction as “indicative of negligence, not willfulness.”
From the perspective of preserving the NYPD’s veil of secrets, this is frequently a winning strategy, civil rights lawyers say, enough so that the Law Department sticks with it.
“There’s a tremendous amount of resources needed to litigate a case like this if you’re a plaintiff,” Charney said. The strategy of discovery obstructionism “creates fatigue for them and their clients, drains their resources. You can tire out the plaintiffs. You may not get them to give up, but you put a tremendous burden on them. It can become a war of attrition.”
The strategy does carry costs. All the time-consuming obstruction can lead to massive legal bills, which the city — and ultimately taxpayers — has to pay if it loses or settles a case. It also throws sand in the gears of the most active federal court district in the nation, forcing already busy judges to spend time refereeing frivolous discovery squabbles rather than trying substantial cases. The biggest cost of the strategy, civil rights lawyers say, is to the systems of accountability and transparency that guarantee New Yorkers’ rights and upon which the legitimacy of the government and the police depends.
Even when judges lose their patience — imposing sanctions on city lawyers or ruling that because NYPD evidence is missing, the court will assume the worst about what it would have shown — the doings of New York’s most secretive public servants remain undisclosed and unscrutinized. That’s a problem, said Green, the plaintiffs’ lawyer. “We’re really just trying to get to the truth,” Green said. “It’s nice to get adverse inferences, but we’d rather have the documents.”
Correction: June 26, 2021, 10:17 a.m.
This story has been updated to reflect that discovery deadlines were pushed back with city lawyers’ consent.