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Case 1:13-cv-01053-MAD-RFT Document 125 Filed 11/20/14 Page 1 of 19

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF NEW YORK
WANDERING DAGO INC.,
Plaintiff,
-v-

Civ. No. 1:13-CV-1053


(MAD/RFT)

ROANN M. DESTITO, JOSEPH


J. RABITO, WILLIAM F. BRUSO, JR.,
AARON WALTERS, NEW YORK RACING
ASSOCIATION, INC., CHRISTOPHER K.
KAY, STEPHEN TRAVERS, JOHN DOES 1-5,
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Defendants.
RANDOLPH F. TREECE
United States Magistrate Judge
DISCOVERY ORDER

The Plaintiff filed a series of Letter-Motions seeking a conference to address


discovery disputes with the Defendants. Dkt. Nos. 105, Pl.s Lt.-Mot., dated Oct. 27,
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2014, & 114, Pl.s Lt.-Mot., dated Nov. 6, 2014. Both groups of Defendants1 filed
Letter-Briefs responding to Plaintiffs Letter-Motions. Dkt. Nos. 113, OGS Defs.
Lt.-Br., dated Nov. 4, 2014, & 119, NYRA Defs. Lt.-Br., dated Nov. 10, 2014. The
Plaintiff filed Reply Letter-Briefs. Dkt. Nos. 109, Pl.s Reply Lt.-Br., dated Oct. 29,
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2014, & 121, Pl.s Reply Lt-Br., dated Nov. 14, 2014. Additionally, several of the
discovery disputes raised by Plaintiff pertain to the nonparty witness Bennett
Liebman. See Dkt. No. 114 at pp. 2-3. Liebman filed a Response to those issues
The State of New York and the Office of General Services (hereinafter OGS) are no
longer defendants in this action. However, Defendants Rabito, Destito, Bruso, and Walters are
employed by OGS and therefore will be collectively denoted as OGS Defendants. Similarly, the
NYRA Defendants are comprised of New York Racing Association, Inc., Christopher K. Kay, and
Stephen Travers.
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raised by Plaintiff. Dkt. No. 120, Liebman Lt-Br., dated Nov. 10, 2014.
On November 19, 2014, a Hearing was held on the record. After hearing from
the parties, the Court rendered several Rulings which are incorporated by reference
into this Discovery Order and are summarized hereinbelow:
OGS Defendants Privilege Log
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Plaintiff complains that the OGS Defendants Privilege Log fails to comply
with the standards set forth in United States v. Constr. Prod. Research, Inc., 73 F.3d
464 (2d Cir. 1996). [A] privilege log should [] identify each document and the
individuals who were parties to the communications, providing sufficient detail to
permit a judgment as to whether the document is at least potentially protected from

disclosure. Constr. Prod. Research, Inc., 73 F.3d at 473. After reviewing OGS
Defendants Privilege Log, Dkt. No. 105, Ex. A, the Court concurs with the Plaintiff
that the OGS Defendants Log lacks the required specificity. A privilege log, such as
OGS Defendants, that basically contains a cursory descriptions of each document,
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the date, the author, recipient and comments is consequentially inadequate. Id. at
473. The primary deficiency in the OGS Defendants Privilege Log, among others,
is the failure to provide sufficient descriptions or bases as to the claimed privileges.2
OGS Defendants filed several documents with the Court for an in camera review so that
I may determine if they are indeed privileged. Ironically, in support of their claims of privilege, the
OGS Defendants adequately described why these documents are cloaked with one or more privilege.
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(continued...)

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Because of the Privilege Logs glaring inadequacies, the Court directs the OGS
Defendants to serve a new and more descriptive log that meets the elements set forth
in Alleyne v. New York State Educ. Dept, 248 F.R.D. 383, 386 (N.D.N.Y. 2008). See
also Children First Found., Inc. v. Martinez, 2007 WL 4344915, at *4 (N.D.N.Y. Dec.
10, 2007) & Trudeau v. New York State Consumer Prot. Bd., 237 F.R.D. 325, 335
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(N.D.N.Y. 2006).
Deliberative Process Privilege
The OGS Defendants and nonparty Liebman have asserted the Deliberative
Process Privilege, which the Plaintiff challenges. The Court acknowledges that the
Deliberative/Executive privilege is a long standing one, which protects the decision

making process of an executive official, mainly to safeguard the free flow of


information amongst key governmental officials so that government can have an
unrestrained analysis in order to render vital decisions. Hopkins v. United States of
Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991). This privilege applies to
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documents that are inter-agency or intra-agency, pre-decisional, and deliberative.


Tigue v. United States Dept of Justice, 312 F.3d 70, 76 (2d Cir. 2002) (noting that the
deliberative process privilege is a sub-species of the work product privilege that

(...continued)

See Dkt. No. 113, OGS Defs. Lt.-Br., dated Nov. 4, 2014, at pp. 2-4. These satisfactory
explanations should serve as a template as to how OGS should complete their Privilege Log.
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covers documents reflecting advisory opinions, recommendations and deliberations


comprising party of a process by which governmental decisions and policies are
formulated) (citations omitted).

But like the work-product privilege, the

deliberative process privilege is qualified. Alleyne v. New York State Educ. Dept,
248 F.R.D. at 388; In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (cited by
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Natl Res. Def. Council, Inc. v. Fox, 1998 WL 158671, at *5 (S.D.N.Y. Apr. 6,
1998)). In the event the decision-making process itself is the subject of the litigation,
the deliberative process privilege cannot be a bar to discovery. Alleyne, 248 F.R.D.
at 388 (quoting Children First Found., Inc., 2007 WL 4344915, at *7); see also In re
Subpoena, 145 F.3d 1422, 1424 (D.C. Cir. 1998) & In re Subpoena, 156 F.3d 1279,

1280 (D.C. Cir. 1998) (noting that the deliberative process privilege unavailability is
limited to those circumstances in which the cause of action is directed at the agencys
subjective motivation).
The Court agrees with Plaintiff that, in the final analysis, the governments and
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the government employees intent are the subject matter of this litigation and therefore
the qualified privilege evaporates. In re Subpoena, 145 F.3d at 1424; Children First
Found. Inc., 2007 WL 4344915, at *5-9. Accordingly, the OGS Defendants assertion
of the deliberative process privilege as a bar to discovery no longer is applicable.
Spoliation of Evidence
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Plaintiff contends that nonparty witness Liebman failed to preserve his emails.
In fact, the Plaintiff posits that they were intentionally destroyed. Due to the nature
of the purported spoliation, the Plaintiff seeks an adverse inference charge against the
OGS Defendants. Because the Plaintiff seeks an adverse inference charge, this Court
declines to address this issue and suggests that it should be presented to the District
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Judge who will preside over any trial. The District Judge should have the sole
prerogative when determining whether an adverse inference is appropriate under these
circumstances. Nonetheless, the Court provides this observation. Liebman, the New
York State Gaming Commission, and even OGS are not defendants in this action. It
appears futile to seek an adverse inference charge against the individual Defendants

when they have no ability nor province to control or dictate Liebmans and the New
York State Gaming Commissions management of its documents and electronically
stored information. Compounding this observation is the predominate proposition that
the Gaming Commission and OGS are separate and distinct governmental agencies,
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responsible for their own discovery production. See New York v. Natl R.R. Passenger
Corp., 233 F.R.D. 259 (N.D.N.Y. 2006). Setting aside the quest for an adverse
inference against the named parties, it is conceivable that if spoliation is established,
nonparty Liebman could be subject to sanctions. However, there is an insufficient
factual basis to determine whether spoliation has occurred and whether sanctions,
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even adverse inference, are appropriate. The Court directs Liebman to provide the
Plaintiff with his agency/commissions electronically stored information retention
policy, and that the parties further address this matter during Liebmans deposition.
Possibly after that discovery, the parties may be able to better frame this issue.
Crime Fraud Exception to the Attorney-Client Privilege
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Defendant Bruso is an attorney for OGS who was consulted on the Plaintiffs
application for the 2013 Summer Outdoor Program. The Plaintiff raises several bases
upon which to pierce the attorney-client privilege being asserted by the OGS
Defendants. First, the Plaintiff contends that because Bruso was a direct participant
in the alleged constitutional violation, the attorney-client privilege should be deemed

waived. The Plaintiff did not provide any case precedent to support the postulation
that a direct participant in a constitutional violation automatically waives his clients
attorney-client privilege, nor does the Court know of such precedent.
Next, the Plaintiff states that the privilege is waived by the crime-fraud
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exception. Courts have recognized such an exception to the attorney-client privilege.


In re Richard Roe, Inc., 68 F.3d 38, 39-40 (2d Cir. 1995). To assert this exception,
the discovery party must demonstrate reasonable cause to believe that a crime or fraud
has been committed or was intended and that the attorney-client communication was
intended to facilitate or conceal the misconduct. United States v. Jacobs, 117 F.3d 82,
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87 (2d Cir. 1997). That is, the particular communication or document in issue itself
must be in furtherance of a contemplated or ongoing criminal or fraudulent
conduct. In re Richard Roe, 68 F.3d at 40 (emphasis added); Antidote Intl Films v.
Bloomsbury Publg PLC, 242 F.R.D. 249, 250-51 (S.D.N.Y. 2007). There is a
disagreement amongst the courts whether this exception possibly extends to
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intentional torts in addition to crime and fraud. Madanes v. Madanes, 199 F.R.D. 135,
148-49 (S.D.N.Y. 2001) (collecting cases).

Those courts that propose that an

intentional tort may fall within this exception fail to provide any specifics as to which
intentional torts would be considered, except where misrepresentation or fraud was
pled. NXIVM Corp. v. OHara, 241 F.R.D. 109, 135 (N.D.N.Y. 2007) (in a case
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where the underlying torts were misrepresentation and fraud, ruling that [a]t a
minimum, the attorney-client privilege does not protect communications in
furtherance of an intentional tort that undermines the adversary system itself).
Nonetheless, the Court could not find any precedent where the allegations brought
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under 42 U.S.C. 1983 were considered an intentional tort for purposes of invoking
the crime fraud exception.
Here, the Plaintiff has failed to meet its burden of demonstrating probable cause
that a crime or fraud has been committed or that attorney-client communication was
intended to facilitate or was created in furtherance of any crime or fraud. Therefore,
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this exception to the attorney-client privilege is not applicable.


Lastly, because the OGS Defendants produced Jason Rumpfs email proposing
various reasons to deny the Plaintiffs application, the Plaintiff asserts that this
disclosure should rise to a subject matter waiver. Dkt. No. 105 at p. 6 (citing United
States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991)). The attorney-client privilege
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may be implicitly waived when a defendant asserts a claim that in fairness requires
examination of protected communications, Bilzerian, 926 F.2d at 1292, or when a
party makes a strategic decision, no matter how broad, sweeping, or limited, to
disclose a privileged information, In re Grand Jury Proceeding, 219 F.3d. 175, 19092 (2d Cir. 2000). The key to a finding of an implied waiver . . . is some showing

by the party arguing for a waiver that the opposing party relies on the privileged
communication as a claim or defense or as an element of a claim or defense. In re
Erie Cnty., 546 F.3d 222, 228 (2008) (emphasis omitted). The Second Circuit
continues by stating that
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[u]nderlying any determination that a privilege should be forfeited is the


notion of unfairness. This notion implicates only the type of unfairness
to the adversary that results in litigation circumstances when a party uses
an assertion of fact to influence the decisionmaker while denying its
adversary access to privileged material potentially capable of rebutting
the assertion. John Doe Co. [v. United States], 350 F.3d 299, 306 [2d
Cir. 2003]. And we have made it clear that [w]hether fairness requires
disclosure has been decided ... on a case-by-case basis, and depends
primarily on the specific context in which the privilege is asserted. In
re Grand Jury, 219 F.3d at 183.
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Id. at 229.
And yet [a] mere indication of a claim or defense certainly is insufficient to place
legal advice at issue or generate a subject matter waiver. Id. Similar to the parties
in Erie, when put in context, the OGS Defendants have not place the matter at issue
so as to cause a forfeiture of the privilege by reason of unfairness. Providing part of
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Rumpfs email does not, by itself, constitute a subject matter waiver. The Court does
not viewed this as a strategic, selective disclosure that opens the door for a subject
matter waiver. This email merely discloses certain facts, and facts are not shielded by
the attorney-client privilege. In re Six Grand Jury Witnesses, 979 F.2d 939, 944 (2d
Cir., 1992) (noting that even though the cloak of the privilege protects the

communication from discovery, the underlying information contained in the


communication is not shielded from discovery); Henry v. Champlain Enter., Inc.,
212 F.R.D. 73, 91 (N.D.N.Y. 2003). There is nothing else presented that indicates that
the OGS Defendants are relying upon the privileged advice from counsel in order to
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present its defense, and therefore, no waiver has occurred. Nonetheless, the Plaintiff
is not foreclosed in raising this issue again, depending upon what is revealed during
discovery.
Plaintiffs Demand to the NYRA Defendants Seeking Vendors Gross Revenues
The Plaintiff filed a Demand upon the NYRA Defendants asking them to
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produce the gross revenue figures from vendors during the 2013 season. Although the
NYRA Defendants acknowledged that they have some of this information, it would
seem that the nonparty Centerplate, a business that manages the vendors at the
Saratoga Race Course, would be the better source for this information. Plaintiff
represents that it is seeking this information from both Centerplate and the NYRA
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Defendants.
NYRA challenges this Demand on several grounds. First, the scope of
Plaintiffs Demand is perceived as irrelevant and not calculated to lead to admissible
evidence. There were an assortment of vendors applying their wares and services to
the patrons of the Saratoga Race Course, most of which were substantially dissimilar

to the Plaintiff. Under NYRA Defendants perspective, possessing data which is


completely dissimilar to the Plaintiff is not only irrelevant but rather unreasonable.
Lastly, the NYRA Defendants contend that if such information was in their
possession, it would be compelled to disclose nonparties competitively sensitive
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information that could be proprietary in nature. See Dkt. No. 119.


During the Hearing, the Plaintiff argued that it was reasonable for it to use a
reasonable yardstick to help calculate its lost profit. Plaintiff implicitly agreed that the
ambit of vendors should be reduced to only comparable vendors. Although the
notion of comparability was discussed during the Hearing, the parties were unable to
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arrive at a consensus as to which vendors were comparable. Yet, there is a list of the
vendors for the parties to inspect in order to determine which vendor may be
designated as comparable to the Plaintiffs business. Therefore, the Court directs the
parties to meet and confer and identify those vendors who could be deemed
comparable to the Plaintiffs business, and once the list of vendors is agreed upon, the
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NYRA Defendants shall disclose those vendors gross revenue for the relevant period
under a stipulation that seeks a protective order.
Deficiencies in NYRA Defendants Responses
The Plaintiff has received disclosure from nonparties Drew Reveall and
Centerplate. When compared with Responses from the NYRA Defendants, the

Plaintiff contends that NYRAs Responses to Interrogatories and Document


Production are purportedly either inaccurate or incomplete. Contrariwise, the NYRA
Defendants state that their Responses and Document Production are indeed complete.
The Plaintiff not only asks the Court to direct these Defendants to produce all of the
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documents but to also order the NYRA Defendants to provide a comprehensive


account of their document collection and production, including the identities of all
custodians or other documents sources searched, any search terms or other limitations
employed, and such other information as will allow Plaintiff and the Court to assess
the completeness of the NYRA Defendants document production. Dkt. No. 114 at
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p. 5. The NYRA Defendants counter by casting the Plaintiffs request as baseless,


uninformed, conjecture, and constituting reckless advocacy. Dkt. No. 119 at p. 2.
Moreover, NYRA Defendants find Plaintiffs request for a comprehensive account
of their document collection and production smacks of guerilla tactics clearly designed
to burden the Court and them. Id. at p. 3. Discrepancies between different parties
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responses and production alone do not indicate that one of the partys responses and
production are inaccurate or incomplete. Rather, the principal concern should be are
they responsive and adequate.
The Court discussed that the parties have both an obligation and a right to
supplement their responses and production in a timely manner if the party learns that,

in a material respect, the response is incorrect or incomplete. FED. R. CIV. P. 26(e).


As a gesture to settle this issue, the NYRA Defendants consent to reviewing their
Responses to Plaintiffs Demand for Interrogatories and agree to amend those
Responses if necessary. To quell the debate as to whether the NYRA Defendants
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Responses and Document Production are complete and accurate, these Defendants
shall also serve verifications to that effect. On another related note, in order to
determine the veracity of these competing responses, the NYRA Defendants suggest
that depositions of persons with first-hand information would best serve the litigants.
The Court agrees.

Lastly, the Court denies the Plaintiffs request that these


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Defendants provide a comprehensive account of their document collection and


production.
Nonparty Liebmans Privilege Log
Nonparty witness Liebman served a Privilege Log withholding a series of
documents. Two of the entries on his Privilege Log claim to be privileged by virtue
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of being prepared in anticipation of litigation. However, a larger subset of documents


described as Portfolio Weekly Reports are claimed to be privileged by virtue of the
deliberative process privilege and the executives quasi-legislative privilege.
Although these two emails were initially described as being prepared in
anticipation of litigation, Liebman advises the Court that he is no longer seeking

protection from disclosure on this ground.


Next, Liebman claims that the Portofolio Weekly Reports are privileged
because of the deliberative process privilege and the executive legislative privilege.
Dkt. No. 120 at p. 4. Liebman argues that these reports provide the Governors
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Executive Chambers within information that may lead to executive or legislative


action. Thus, in his view, the Speech and Debate Clause of the United States
Constitution affords immunity for these reports.
Reliance on the Speech and Debate Clause of the United States Constitution is
misplaced. This constitutional clause applies only to the federal legislature, protecting
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them from executive and judicial interference. Furthermore, there is no executive


privilege per se beyond that possibly reposed in the federal executive branch[.]
Alleyne, 248 F.R.D. at 387. However, there is a state legislative privilege in federal
cases that protect state legislators from being compelled to disclose documents with
respect to action within the scope of legitimate legislative activity. Favor v. Cuomo,
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285 F.R.D. 187, 209 (E.D.N.Y. 2012). Actually, the more relevant doctrine to cloak
communications from executive agencies to the Executive Chamber is the common
interest doctrine. The Executive Chamber and state agencies will generally fall
within the common interest doctrine and, in this respect, communications between
Governor [staff] and [agency staff] are absolutely and unmistakenly encompassed by

this doctrine insofar as they have an inseparable and abiding common interest in
ensuring that policies are both legal and constitutional. Children First Found., 2007
WL 4344915, at *15. Therefore, if privileges attach to documents at the agency level,
those privileges are not waived because the documents have been shared with the
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Governors staff.
The Court has conducted an in camera review of the Portfolio Weekly Reports
and determine that, as they relate to this litigation, to be nothing more than reports on
current events, which are purely factual in nature. Just because a recorded event within
the Portfolio Weekly Reports may conceivably lead to executive or legislative action,
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does not afford the protection Liebman seeks. In reporting these events, Liebman is
not seeking executive or legislative action nor developing policy.

Had seeking

executive or legislative action or proposing a policy been the case, the Court would
have a different perspective as to whether various privileges would prevail.
Nonetheless, the deliberative executive privilege is inapplicable insofar as it does not
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apply to purely factual matters. Furthermore, the Court does not discern any
legislative function that confers the state legislative privilege. And, finally, there is
no other conceivable privilege that can be associated with this Report. However, with
the exception of Liebmans reports concerning the Plaintiff, the substantial majority
of the Reports is totally irrelevant and shall be redacted. Therefore, the Court directs

Liebman to provide the Plaintiff with a redacted copy of the Portfolio Weekly Reports
consistent with the Ruling made during the Hearing.
Additional In Camera Review of OGS Defendants Documents
The OGS Defendants have submitted several documents to the Court for an in
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camera review.

These Defendants claim that these particular documents are

privileged because of the deliberative process privilege, the attorney-client privilege,


or the work product doctrine. As noted above, the Court ruled that the deliberative
process privilege does not apply. Just because the deliberative process privilege has
been waived, does not necessarily mean that the attorney-client privilege is degraded
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as well. Only when the attorney-client privileged document has been adopted as or
incorporated by reference into an agencys policy, and not a mere reliance on the
documents conclusion, will the deliberative process privilege and that attorney-client
privilege concurrently disappear. Natl Council of La Raza v. Dept of Justice, 411
F.3d 350, 359-61 (2d Cir. 2005); see also New York Times v. United States Dept of
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Justice, 756 F.3d 100, 116 (2d Cir. 2014). In terms of the attorney-client privilege,
the Court carefully weighed every document to determine whether its predominate
purpose was to solicit and render legal advice as opposed to being a policy request.
In re Erie Cnty., 473 F.3d 413 (2d Cir. 2007).
For the most part, many of the documents have been deemed cloaked by the

attorney-client privilege or the work product doctrine. Those documents directed to


be produced may have redactions to remove the privileged communication:
072 - This document is protected by the attorney-client privilege.
078 - Only the entry from Flynne to Bruso is protected by the attorney-client
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privilege.
079 & 080 - Shall be fully disclosed.
084 - With the exception of Plaintiffs email to Aaron Walters, the balance of
document is protected by the attorney-client privilege.
085 - Shall be disclosed.
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086 - With the exception of Plaintiffs email to Aaron Walters, the balance of the
document is protected by the attorney-client privilege.
193 & 194 - This document is protected by the attorney-client privilege.
430 - This document is protected by the attorney-client privilege.
489 & 490 - This document shall be disclosed.
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540 - This document is protected by the attorney-client privilege.


541 & 542 - This document is protected by the work product doctrine.
562-564 - These documents are protected by the work product doctrine and the
attorney-client privilege, except for the entry, dated May 17, 2013, which entry shall
be disclosed.

566 & 567 - This document is protected by the work product doctrine and the
attorney-client privilege, except for the entry, dated May 17, 2013, which entry shall
be disclosed.
569 & 570 - This document is protected by the work product doctrine and the
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attorney-client privilege, except for the entry, dated May 17, 2013, which entry shall
be disclosed.
574 - This document is protected by the attorney-client privilege.
576 - This document is protected by the attorney-client privilege except for the entries,
dated May 20, 2013.
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592 - This document is protected by the attorney-client privilege


612 - Only the entry, dated May 16, 2013, from Heather to Bruso is protected by the
attorney-client privilege.3
Plaintiffs Interrogatories to NYRA Defendants
Considering that further disclosure may be forthcoming from the NYRA
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Defendants and that these Defendants, after further review, may file amended
responses to the Plaintiffs Interrogatories, the Court will not consider these discovery
disagreements at this time. Depending on NYRA Defendants subsequent responses,
Plaintiff may revisit these issues again with the Court.
Plaintiffs Subpoena to State University of New York

The Plaintiff has served a Subpoena upon the State University of New York
(SUNY) seeking information pertaining to its policy in reviewing the Plaintiffs
application. See Dkt. No. 120 at Ex. D. The OGS Defendants seeks to understand the
relevancy of this nonparty Subpoena. During the Hearing, the Plaintiff outlines its
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bases for the Subpoena. Nonetheless, SUNY has neither responded nor moved to
quash the Subpoena at this juncture. Therefore, at this moment, this issue is not
before the Court.

If the instructions are unclear as to which documents are fully disclosed, or those that are
disclosed in redacted form, the Defendants may confer with the Court for further clarity.
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Scheduling Order
Production of an amended privilege log and the disclosure of documents
consistent with this Discovery Order shall occur on or before December 5, 2014. The
Scheduling Order is amended as follows: (1) the discovery deadline is February 20,
2015; (2) the final day to file dispositive motions is April 17, 2015; (3) all other
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provision of the Scheduling Order shall remain in effect; and (4) no further extensions
will be considered. No further written demands are permitted.
IT IS SO ORDERED.
November 20, 2014
Albany, New York

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