UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

ADAM PRITCHARD, EDWARD
ROBINSON, and JULENNE TUCKER, both individually and on behalfofa class of others similarly situated,

Plaintiffs,

: 04 Clz 0534 Civil Action Number

THE COUNTY OF ERIE,

:

PATRICK M. GALLIVAN,

:

both individually and in his

:

official capacity as Sheriff of the Cottmy of :

Erie, TIMOTHY HOWARD, both

:

individually and as Undersheriff of the :

County of Erie, DONALD J.

:

LIVINGSTON, both individually and as :

Acting Superintendent of the Erie County:

Correctional Facility, ROBERT HUGGINS, :

both individually and as Deputy

:

Superintendent of the Erie County

:

Correctional Facility, and H. McCARTHY :

GIBSON, both individually and as

:

Superintendent of the Erie County Holding :

Center,

:

CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

Defendants.

INTRODUCTION This is a class action brought to redress the deprivation by Defendants of rights secured to the Plaintiffs and proposed Class by the United States Constitution and the laws of the United States of America. For the past several years, the Erie County Sheriff’s Departmem has had a policy of strip-searching all individuals who emer either the Erie County Holding Center and/or the Erie County Correctional Facility, regardless

of the crime upon which they are charged. Upon information and belief, this policy is, in part, derived from the written procedures of the Erie County Sheriff’s Department, and was promulgated by senior Department officials; specifically, Defendants Sheriff Patrick Gallivan, Undersheriff Timothy Howard, Acting Superintendent Daniel J. Livingston, Deputy Superintendent Robert Huggins, and Superintendent H. McCarthy Gibson.
It has been welt established in this judicial circuit for many years that individuals charged with misdemeanors or violations cannot be strip-searched absent particularized suspicion that they possess weapons or contraband. In short, the policy of Erie County and the Erie County Sheriff’s Department to force those charged with minor crimes to undergo the indignities of a strip search upon entry into the Erie County Holding Center and/or the Erie County Correctional Facility is not only clearly illegal, but is insensitive and unnecessary.
Adam Pritehard, Edward Robinson, and Julenne Tucker bring this action on behalf of themselves, and on behalf of a class ot" thousands of others who were strip searched after being charged with petty crimes, to vindicate the clear and unnecessary violation of their civil rights and those of the class members they propose to represent. All three of these individuals were charged with misdemeanor and/or violation offenses, and all were subject to strip searches, in violation of their right against unreasonable searches under the Fourth Amendment of the United States Constitution. They seek monetary damages for themselves and each member of the proposed class, a declaration that the Sheriff’s Department’s policies are unconstitutional, and an injunction precluding Erie County and the Erie County Sheriff’s Department from continuing to violate the
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rights of those .placed into their custody. With this as a background, Plaintiffs Adam Pritchard, Edward Robinson~ and Julenne Tucker complain as follows:
JURISIJlCTION 1. This Court has jurisdiction over this action under the previsions of 28 U.S.C. § 1331, 1341 & 1343 because it is filed to obtain compensatory damages, punitive damages, and injunctive relief for the deprivation, under color of state taw, of the rights of citizens of the United States secured by the Constitution and federal law pursuant to 42 U.S.C. §§ 1981 & 1983. This Court also has jurisdiction over this action under the provisions of 28 U.S.C. § 2201, as it is filed to obtain declaratory relief relative to the Constitutionality of the policies of a local government. 2. Venue is proper under 28 U.S.C. § 1391(e)(2) because the events giving rise to Plaintiffs’ claims and those of proposed class members occurred in this judicial district.
PARTIES Plaintiff Adam Pritchard ("Pritchard") is 37 years old and resides in Erie County. Pritchard was arrested on or about May 13, 2003 and placed into the Erie County Correctional Facility on a Violation of Parole for leaving Erie County without authorization and using a cell phone. Mr. Pritchard was not charged with any crime at the time of his arrest, only with a violation of the conditions of his parole. Mr. Pritchard was on parole after being convicted of the crime of Attempted Assault in the Second Degree, a Class E Non-Violent Felony offense.

4. Plaintiff Edward Robinson ("Robinson") is 20 years old and resides in Erie County, New York. Robinson was arrested on or about May 14, 2004 and transported to the Erie County Holding Center on charges of failing to pay a fme related to a traffic infraction (driving with a suspended license). Upon information and belief, Mr. Robinson was held in the Erie County Holding Center on one additional occasion during the class period.
5. Plaintiff Julenne Tucker ("Tucker") is 33 years old and resides in Cook County, Illinois. On or about June 1, 2004, Tucker was arrested and placed in the Erie County Holding Center on charges Trespassing in the First Degree (a class A misdemeanor).
6. Defendant County of Erie (the "’County"). is a county government organized and existing under the laws of the State of New York. At all times relevant hereto, the County, acting through its Sheriff’s Department, was responsible for the policies, practices, supervision, implementation and conduct of all matters pertaining to the Erie County Holding Center and the Erie County Correctional Facility and was responsible for the appointment, training, supervision and conduct of all Sheriff’s Department personnel, including those working in the Erie County Jail. In addition, at all relevant times, the ¯County was responsible for enforcing the rules of the Erie County Holding Center and the Erie County Correctional Facility, and for ensuring that Sheriff’s Department personnel employed in the Jail obey the Constitution and taws of the United States and of the State of New York.
7. The Erie County Sheriff’s Department (the "Sheriff’s Department") is a County Sheriff’s Department organized and existing under the laws of the State of New

York. Although not a legal entity for the purposes of litigation, the Departmem is listed as a party for the purposes of identification. At all times relevant hereto, the Sheriff s Department was responsible for operating, organizing, overseeing and administering the Erie County Holding Center ("ECHC") and the Erie County Correctional Facility ("ECCF"). At all times relevant hereto, Defendant Sheriff’s Department, together with the County of Erie, was responsible for the polices, practices, supervision, implementation and conduct of all matters pert’fining to the ECHC and the ECCF, and was responsible for the appointment, training, supervision and conduct of all Sheriff’s Department personnel, including those working in the ECHC and the ECCF. In addition, at all times relevant hereto, Defendant Sheriff’s Department, together with the County of Erie, was responsible for enforcing the roles of the Erie County Holding Center and the Erie County Correctional Facility, and for ensuring that Sheriff’ s Department personnel employed in the ECHC and the ECCF obeyed the Constitution and laws of the United States and of the State of New York.
8. Defendant Patrick M. Gallivan ("Sheriff Gallivan") is the duly elected Sheriff of Erie County, and, as such, is a policy maker with respect to the treatment of pre-triat and other detainees over which the ECHC and the ECCF exercises custodial or other control. Sheriff Gallivan’s principal place of business is 10 Delaware Avenue, Buffalo, NY 14202. SheriffGatlivan is made a Defendant in this action in both his individual and official capacities.
9. Defendant Timothy Howard ("Undersheriff Howard") is the duly appointed ¯ Undersheriff of Erie County, and, as such, is a policy maker with respect to the treatment of pre-trial and other detainees over which the ECHC and the ECCF exercises custodial

or other control. Undersheriff Howard’s principal place of business is 10 Delaware Avenue, Buffalo, NY 14202. Timothy Howard is made a Defendant in this action in both his individual and official capacities.
10. Defendant Donald J. Livingston ("Superintendent Livingston") is the duly appointed Acting Superintendent of the Erie County Correctional Facility and is the officer in charge of the operation of the Erie County Correctional Facility. As such, Superimendent Livingston is a policy maker with respect to the treatment of pre-trial and other detainees over which the ECCF exercises custodial or other control. Superintendent Livingston’s principal place of business is 11581 Walden Avenue, Alden, NY 14004. Superintendent Livingston is made a Defendant in this action in both his individual and official capacities.
11. Defendant Robert Huggins ("Deputy Superintendent Huggins") is the duly appointed Deputy Superintendent of the Erie County Correctional Facility. Deputy Superintendent Huggins is second in command to Superintendent Livingston in responsibility for jail operations. As such, Deputy Superintendent Huggins is a policy maker with respect to the treatment ofpre-lrial and other detainees over which the ECCF exercises custodial or other control. Deputy Superintendent Huggins’s principal place of business is t 1581 Walden Avenue, AMen, NY 14004. Deputy Superintendent Huggins is made a Defendant in this action in both his individual and official capacities.
12. Defendant H. McCarthy Gipson ("Superintendent Gibson") is the duly appointed Superintendent of the Erie County Holding Center and is the officer in charge of the operation of the Erie County Holding Center. As such, Superintendent Gibson is a policy maker with respect to the treatment ofpre-trial and other detainees over which the
6

ECHC exercises custodial or other control. Superintendent Gibson’s principal ¯place of business is 10 Delaware Avenue, Buffalo, NY 14202 Superintendent Livingston is made a Defendant in this action in both his individual and official opacities.
13. Collectively, Sheriff Gallivan, Undersheriff Howard, Superintendent Livingston, Deputy Superintendent Huggins and Superintendent Gibson will be referred to as the "Policy Making Defendants.’"
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CLASS ACTION ALLEGATIONS
14. Plaintiffs bring this action pursuant to Rules 23(b)(2) and 23(b)(3) of the
Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated
individuals who were charged with misdemeanors or minor crimes and were strip
searched upon their entry into the Erie County Holding Center and the Erie County
Correctional Facility.
15. The class that Plaintiffs seek to represent is defined as follows:
All persons who have been or will be placed into the custody of the Erie County Correctional Faeitity and/or the Erie County Holding Center after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were or will be strip .searched upon their entry into the Erie County Correctional Facility and/or the Erie County Holding Center pursuant to the policy, custom and practice of the Erie County Sheriff’s Departmerrt and the County of Erie. The class period commences on July 22, 200t and extends to the date on which the Erie County Sheriff’ s .Department and/or the County of Erie are enjoined from, or otherwise cease, enforcing their unconstitutional policy, practice and custom of conducting strip searches absent reasonable suspicion. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees.
16. This action has been brought and may properly be maintained as a class action
under Federal law and satisfies the numerosity, commonality, typicality and adequacy
requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
17. The members of the class are so numerous as to render joinder impracticable.
Upon information and beliet~ there are thousands of people arrested for misdemeanors
and violations who are placed into the custody of the Erie County Correctional Facility
and/or the Erie County Holding Center every month - all of whom are members of the
proposed class. Upon information and belief, the size of the proposed class totals at least
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20,000 individuals, some of whom have had their civil rights violated on multiple occasions.
18. Upon information and belief, joinder of all of these individuals is impracticable because of the large number of class members and the fact that class members are tikely dispersed over a large geographical area, with some members presently residing outside of Erie County and this Judicial District. Furthermore, upon information and belie1; many members of the class are low-income persons, may not speak English, and likely would have great difficulty in pursuing their rights individually.
t9. Common questions of law and fact exist as to atl members of the Class, in that they all had their right to be free t~om unreasonable searches violated by Defendants’ conducting strip searches absent particularized suspicion. A11 members of the class were charged with misdemeanors or violations when placed into the custody of the Erie County Correctional Facility and/or the Erie County Hotding Center, and all were illegally strip searched in violation of the clearly established law in this judicial circuit.
20. Plaintiffs’ claims are typical of the claims of the members of the Class. Plaintiffs and all members of the class sustained damages arising out of Defendants’ course of conduct. The harms suffered by the Plaintiffs are typical of the harms suffered by the class members.
21. The representative Plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the Class. Plaintiffs have no interests that are adverse to the interests of the members of the Class.
22. Plaintiffs have retained counsel who has sub~antial experience and success in the prosecution of class action and civil rights iitigatiorL The named Plaintiffs are being
9

represented by Elmer Robert Keach, III; Bruce Menken and Jason Rozger of Berenbaum Menken & Ben-Asher, LLP; Gary E. Mason and Charles Schneider of The Mason Law Firm, PLLC; and Jonathan Cuneo and Charles LaDuea of Cuneo Waldman & Gilbert, LLP. Mr. Keach is an experienced civil rights and class action attorney who has litigated a wide variety of civil rights actions in federal courts, and has litigated class action lawsuits in state and federal courts in five states. Mr. Keach has successfully litigated strip search cases against the Troy City Police Department, the Rensselaer County Sheriff’s Department and the Schenectady City School District, and is lead counsel in several strip search class actions pending before the U.S. District Court for the Northern District of New York.
23. Bruce Menken and Jason Rozger are both experienced civil rights attorneys from New York City, having litigated scores of civil rights cases against a number of Defendants, including one prison brutality case presemly pending in this District. Mr. Menken and Mr. Rozger have successfully represented many victims of iltegal strip searches, including several who opted out of the recent class action litigation against the City of New York. Mr. Menken and Mr. Rozger have both served as co-counsel in similar class action litigation pending before the U.S. District Court for the Northern District of New York.
24. Gary E. Mason is one of this cotmtry’s premier class action attorneys, with offices in Washington, DC. Mr. Mason has successfully litigated class actions against Fortune 500 companies in both state and federal court in over a dozen jurisdictions, including gaining a settlement for a class of purchasers of defective polybutylene pipe of $ 950 million dollars. Mr. Mason has served as lead or co-counsel in numerous high

profile class actions, including In Re The Exxon Valdez, In Re Diet Drugs Product Liability Litigation and In Re Synthetic Stucco (EIFS) Product Liability Litigation~ In addition to his extensive experience as a class action and environmental lawyer, Charles Schneider is a former trial attorney with the U.S, Department of Justice’s Civil Rights Division and has successfully litigated a series of cases.involving corrections misconduct. Mr. Mason and Mr. Schneider have both served as co-counsel in similar class action litigation pending before the U.S. District Court for the Northern District of New York.
25. Jonathan Cuneo and Charles LaDuea ofCuneo Waldman & Gilbert, LLP have extensive experience before state and federal trial arid appellate courts, before law enforcement authorities and in proceedings before the United States Congress. Cuneo and LaDuca have successfully prosecuted several complex class actions, including cases involving securities fraud, antitrust violations, consumer protection and products liability in state and federal courts throughout the United States. Mr. Cuneo and Mr. LaDuca have both served as co-counsel in a similar class action pending before the U.S. District Court for the Northern Distrief of New York.
26. In short, Plaintiffs" counsel has the resources, expertise and experience to successfully prosecute this action against ErCieounty, the Erie County Sheriff’s Department and the Policy Making DefendantsC. ounsel for Plaintiffs knows of no conflicts among members of the class, or between counsel and members of the class.
27. This action, in part, seeks declaratory and injunctive relief. As such, the Plaintiffs’ seek class certification under Fed. R. Civ. P. 23(b)(2), in that all class members were subject to the same policy requiring the illegal strip searches of individuals charged with misdemeanor or minor crimes and placed into the custody of the Erie County Jail.
I1

In short, the County of Erie, the Erie County Sheriffs Department, the Policy Making Defendants and Erie County Corrections Officers acted on grounds generally applicable to all class members.
28. In addition to certification under Rule 23(b)(2), and in the alternative, Plaintiffs seek certification under Rule 23(b)(3).
29. Common questions of law and fact exist as to all members of the Class, and predominate over any questions that affect only individual members of the Class. These common questions of law and fact include, without limitation, the common and predominate question of whether the Defendants" written and/or de facto policy of strip searching all individuals charged with misdemeanors or minor crimes and committed to the ECCF and/or the ECHC is a violation of the Fourth and Fourteenth Amendments to the United States Constitution, and whether such a written and/or de facto policy existed during the class period.
30. A class action is superior to other available methods for the fair and efficient adjudication of this controversy, since joinder of all of the individual members of the class is impracticable given the large number of class members and the fact that they are dispersed over a large geographical area. Furthermore, the expense and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to them. The cost to the federal court system of adjudicating thousands of individual cases would be enormous. Individualized litigation would also magnify the delay and expense to all parties and the court system. By contrast, the conduct of this action as a class action in this District presents far fewer
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management difficulties, conserves the resources of the parties and the court system, and protects the rights of each member of the Class.
31. Upon information and belief, there are no other actions pending to address the Defendants’ flagrant violation of the civil rights of thousands of individuals, even though the Defendants have maintained their illegal strip search regimen for at least the past several years, with the practice being declared unconstitutional in this judicial circuit in 1986.
32. In the alternative to certification under Fed. R. Civ. P. 23(b)(3), Plaintiffs also seek partial certification under Fed. R. Civ. P. 23(c)(4).
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FACTS

¯

Facts Applicable to the Class Generally

33. The Fourth Amendment of the United States Constitution prohibits state

officials, such as the Policy Making Defendants in this action and the Corrections

Officers they supervise, from performing strip searches of arrestees who have been

charged with misdemeanors or other minor crimes unless the officer has reasonable

suspicion to believe that the arrestee is coneealing a weapon or contmband.

34. Upon information and belief, the County of Erie, the Erie County Sheriff’s

Department and the Policy Making Defendants have instituted a written and/or de facto

policy, custom or practice of strip searching all individuals who enter the custody of the

ECCF and/or the ECHC, regardless of the nature of their charged crime and without the

presence of reasonable suspicion to believe that the individual was concealing a weapon

or contraband.

35. Upon information and belief, the County of Erie, the Erie County Sheriff’s

Department and the Policy Making Defendants have instituted a written and/or de facto

policy, custom or practice of conducting visual body cavity searches (visual inspection of

the vaginal and reetaI cavities) on all individuals who enter the custody of the ECCF

and/or the ECHC, regardless of the individual characteristics or the nature of their

charged crime. For purposes of this Complaint, strip and visual cavity searches are

collectively referred to as "strip searches."

36. The County of Erie, the Erie County Sheriff’s Department, and the Policy

Making Defendants know that they may not institute, enforce or permit enforcement of a

policy or practice of conducting strip searches without particularized, reasonable

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suspicion. This judicial circuit has stated repeatedly that state officials may not strip search individuals charged with misdemeanors or violations absent particularized, reasonable suspicion, with this principle being clearly established in 1986 by Weber v. Dell, 804 F.2d 796 (2d Cir. 1986).
37, The Defendants’ written and/or de facto policy, practice and custom mandating wholesale strip searches of all misdemeanor and violation arrestees has been promulgated, effectuated and/or enforced in bad faith and contrary to clearly established law.
38. Upon information and belief, not only is the policy of strip searching illegal, but the manner in which individuals are searched is also impermissible. For example, upon information and belief, individuals are strip searched in the presence of corrections officers, jail employees and/or other arrestees, some of whom are of the opposite gender.
39. Reasonable suspicion to conduct a strip search may only emanate from the particular circumstances antecedent to the search, such as the nature of the crime charged, the particular characteristics of the arrestees, and/or the circumstances oft he arrest.
40. Upon information and belief, the County of Erie, the Erie County Sherift" s Department and the Individual Defendants have promulgated, implemented, enforced, and/or failed to rectify a written and/or de facto policy, practice or custom of strip searching all individuals placed into the custody of the Erie County Jail without any requirement of reasonable suspicion, or indeed suspicion of any sort. This written and/or de facto policy made the strip searching of pre-trial detainees routine; neither the nature of the offense charged, the characteristics of the arrestee, nor the circumstances of a

particular arrest were relevant to the enforcement of the policy, practice and custom of routine strip searches.
41. Pursuant to this written and/or de facto policy, each member of the Class, including every named Plaintiff, was the victim of a routine strip search upon their entry into the ECCF and/or the ECHC. These searches were conducted without inquiry into or establishment of reasonable suspicion, and in fact were not supported by reasonable suspicion. Strip searches are conducted for individuals arrested for, among other innocuous offenses, traffic violations and Trespassing.
42. As a direct and proximate result of the unlawful strip search conducted pursuant to this written and/or de facto policy, the victims of the unlawful strip searches each member of the class, including every named Plaintiff- has suffered or will suffer psychological pain, humiliation, suffering and mental anguish.
Facts Applicable to the Named Plaintiffs A. Julenne Tucker 43. Mr. Tucker’s experience is representative. On or about June 1, 2004, Mr. Tucker was charged with Criminal Trespassing in the First Degree, a Class A misdemeanor. Mr. Tucker subsequently resolved these Charges by pleading guilty to Criminal Trespassing in the Second Degree, a Class B Misdemeanor, and received 17 days incarceration as a penalty (time served to the date of his first appearance). Mr. Tucker is presently 33 years old.He was taken into custody by the Town of Hamburg Police Department. 44. At approximately 1:30 PM on or about June 2, 2004, Mr. Tucker was transported to the Erie County Holding Center on $250.00 bail. Approximately three
16

hours later, Mr. Tucker was moved into a homing cell in the intake area of the HoMing Center and ordered to remove his clothingA. s Corrections Officers watched, Mr. Tucker removed his clothing.
45. A Corrections Officer then instructed MriTucker to turn his back to them, squat and spread the lobes of his buttocks to allow for a visual inspection of his rectum. Mr. Tucker was subsequently instructed to lift his feet, turn around and ii_ft his testicles. After a Corrections Officer later inspected his mouth and hair, Tucker was provided with a jail uniform.
46. This search was conducted in the presence of three other detainees, who were also being strip searched at the same time as Mr. Tucker. Three Corrections Officers were present during this search, and were themselves searching other detainees.
47. On this particular occasion, there was no reasonable suspicion to believe that Mr. Tucker was concealing a weapon or other contraband. Indeed, no inquiry was made of Mr. Tucker that could have given rise to the requisite reasonable suspicion. Moreover, because Mr. Tucker had already been in the custody of police officers from the Town of Hamburg, the Corrections Officers in question knew or should have known that Mr. Tucker had already been subjected to a search incident to arrest that would have revealed any weapons or contraband.
48. Mr. Tucker has three previous felony convictions, and k likely that he could be arrested again and placed in the custody of the Erie County Sheriff.
49. As a direct and proximate result of the unlawful strip search conducted pursuant to County and Sheriff’s Department policy, practice and custom, Mr. Tucker has
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suffered and continues to suffer psychological pain, humiliation, suffering and mental anguisl~
B. Edward Robinson 50. Mr. Robinson’s experience is representative as well. On or about May 14, 2004, Mr. Robinson was arrested on a bench warrant, the basis for the warrant being that he had failed to pay a $200.00 fine assessed after a conviction for driving on a suspended license (a traffic infraction). Mr. Robinson subsequently resolved the bench warrant by serving four days in the Erie County Holding Center. Mr. Robinson is presently 20 years old. Mr. Robinson was taken into custody by the Town of Lackawanna Police Department. 51. At approximately 12i00 PM on May 15, 2004, Mr. Robinson was transported to the Erie County Holding Center. Approximately 5 minutes alter arriving, Mr. Robinson was moved into a room in the intake area and told to face "the eyes" on the wall, He was then instructed to remove all of his clothing. As a Corrections Officer watched, Mr. Robinson removed his clothing with the exception of his underpants. Mr. Robinson was then instructed to pull the waist band of his undershorts forward, whereupon the Corrections Officer inserted a gloved hand into Robinson’s underpants and physically examined his groin, including the sides of his testicles. Mr. Robinson was then instructed to lower his underpants, bend over and "spread your cheeks." Mr. Robinson complied, and the Corrections Officer then conducted a visual inspection of Mr. Robinson’s rectal cavity. 52. Mr. Robinson then put his street clothes back on, and was moved to a holding area known as "’the bullpen."
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53. This initial search was conducted in the presence of his transporting officer ~om the Town of Lackawanna and a female Corrections Officer, both of whom had a clear view of the area where Mr. Robinson was searched.
54. Several hours later, Mr. Robinson was strip searched again upon receiving his jail uniform.
55. Upon information and belief, Mr. Robinson was admitted to the Ere County Holding Center on another occasion during the class period, and was also subjected to a strip search at that time.
56. There was no reasonable suspicion to believe that Mr. Robinson was concealing a weapon or other contraband. Indexxl, no inquiry was made of Mr. Robinson that could have given rise to the requisite reasonable suspicion.
57. As a direct and proximate result of this unlawfifl strip search conducted pursuant to County and Sheriff’s Department policy, practice and custom, Mr. Robinson has suffered and cominues to suffer psychological pain, humiliation, suffering and mental anguish.
C. Adam Pritchard 58. Mr. Pritchard’s experience is represemative as well. On or about May 13, 2003, Mr. Pritchard was charged with violating the conditions of his parole - namely, he was violated for leaving Erie County without permission and for using a cell phone in contradiction to the conditions of his parole. Mr. Pritehard was taken into custody by a New York State Parole Officer. 59. At approximately 4:00 PM on the day of his arrest, Mr. Pritehardwas transported to the Ere County Correctional Facility. Soon thereafter, Mr. Pritchard was
19

moved into a small room in the intake area where a Corrections Officer sat at a desk. At the time of Mr. Pritchard’s admission, there were two Corrections Officers and three detainees ("intake workers") present in the small room. The Corrections Officer instructed Mr. Pritchard to remove each piece of his clothing separately while Pritchard stood in front of him, including Pritchard’s underpants. The room where the search was performed is in plain view of the chairs utilized for intake of new detainees, and is also in plain view of the facility control room where female Corrections Officers are sometimes assigned.
60. The Corrections Officer then instructed Mr. Prichard to "lift" his testicles, then. litt his penis separately from his testicles. Pritchard then was instructed to turn around, place his hands against the wall, and lifi his feet. He was then required bend at the waist and spread the lobes of his buttocks to allow the Corrections Officer to visually examine his rectum. Pritchard then was required to open his mouth for an inspection, and subsequently received the jail uniform.
61. Without stating or implying that Mr. Pritchard is a habitual criminal, Mr. Pritchard has been arrested on a number of occasions in the past. Consequently, there is a possibility beyond mere speculation that he will be rearrested in the future, making it likely that he will again be subjected to the same illegal search procedure.
62. There was no reasonable suspicion to believe that Mr. Pritchard was concealing a weapon or other contraband. Indeed, no inquiry was made of Mr. Pritchard that could have given rise to the requisite reasonable suspicion. Moreover, because Mr. Pritchard had already been in the custody of a Parole Officer of the New York State Division of Parole, the Corrections Officer in question knew or should have known that
2O

Mr. Pritehard had already been subjected to a search incident to arrest that would have revealed any weapons or comraband.
63. As a direct and proximate result of this unlawful strip search conducted pursuant to County and Sheriff’s Department policy, practice and custom, Mr. Pritchard has suffered and continues to suffer psychological pain, humiliation, suffering and mental anguish.
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CAUSES OF ACTION AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS
Violation of Constitutional Rights Under Color of State Law -- Unreasonable Search and Failure to Implement Municipal Policies to Avoid
Constitutional Deprivations Under of Color of State Law -64. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 63. 65. The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches by law enforcement officers, and prohibits officers from conducting strip searches of individuals arrested for misdemeanors or violations absent some particularized suspicion that the individual in question has either contraband or weapons. 66. The actions of Defendants detailed above violated Plaintiffs’ rights under the United States Constitution. Simply put, it was not objectively reasonable for Erie County Corrections Officers to strip search Plaintiffs and class members based on their arrests for misdemeanor/violation charges. It was also not objectively reasonable for the Policy Making Defendants to order/direct Erie County Corrections Officers to conduct such searches. 67. These strip searches were conducted pursuant to the policy, custom or practice of the County of Erie and the Erie County Sheriffs Department. As such, the County of Erie is directly liable for the damages of the named Plaintiffs and members of the Class. 68. Upon information and belie£ Sheriff Gallivan, Undersheriff Howard, Superintendent Livingston, Deputy Superintendent Huggins and Superintendent Gibson are responsible for establishing the policies and procedures to he utilized in the operation

of the Erie County Correctional Facility and the Erie County Holding Center, and are responsible for the implementation of the strip search policy questioned in this lawsuit. As such, Gatlivan, Howard, Livingston, Huggins and Gibson are each individually responsible for the damages of the named Plaintiffs and members of the Class.
69. Sheriff Galtivan, Undersheriff Howard, Superintendent Livingston, Dept~ty Superintendent Huggins, and Superintendent Gibson knew that the ECCF and ECHC’s strip search policy was illegal, and acted willfully, knowingly, and with specific intent to deprive Plaintiffs and members of the Class of their Constitutional rights.
70. This conduct on the part ofalI Defendants represents a violation of 42 U.S.C. § 1983, given that their actions were undertaken under color of state law.
71. As a direct and proximate result of the uneonstitutional acts described above, Plaintiffs have been irreparably injured.
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AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS -- Demand for Declaratory Judgment --
72. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 71.
73. The policy, custom and practice of the Erie County SherifFs Department, the County of Erie and the Policy Making Defendants is clearly unconstitutional in that these entities and individuals are dkecting/conducting the strip searches of all individuals placed into the ECCF and/or the ECHC vckhout any particularized suspicion that the individuals in question have either contraband or weapons. . .
74. Plaintiffs and members of the Class request that this Court issue a declaratory judgment, and that it declare the strip search policy of the County of Erie and the Erie County Sheriff s Department to be UlmOnstitutional.
AS AND FOR A THIRD CAUSL OF ACTION AGAINST ALL DEFENDANTS -- Demand for Preliminary and Permanent Injunction --
75. Plaintiffs incorporate by reference and reallege each and every allegation stated in paragraphs 1 through 74.
76. The policy, custom and practice of the Erie County Sheriff’s Department, the County of Erie and the Policy Making Defendants is clearly unconstitutional, in that these entities and individuals are directing/conducting the strip searches of all individuals placed into the ECCF and/or the ECHC without any particularized suspicion that the individuals in question have either contraband or weapons.

77. Upon information and belief, this policy is currently in place at the ECCF and the ECHC, with new and/or prospective members of the Class being subjected to the harms that have already been inflicted upon the named Plaintiffs.
78. The cominuing pattern of strip searching individuals charged with minor crimes will cause irreparable harm to the new and/or prospective members of the Class, an adequate remedy for which does not exist at law.
79. Plaintiffs demand that the County of Eriteh,e Erie County Sheriff’s Department, the Policy Making Defendants and Erie County CorrectioOnfsficers immediately desist from strip searching individuals placed into the custody of the ECCF and/or the ECHC absent any particularized suspicion that the individuals in question have either contraband or weapons, and seek both a preliminary and permanent injunction from this Court ordering as much.
25¯

...

DEMAND FOR PUNITIVE DAMAGES

80. The actions of the Individual Defendants detailed herein are outrageous, in

that they continue to propagate an illegal strip search policy even though they know for a

fact that their actions are unconstitutional.

DEMAND FOR TRIAL BY JURY 81. The Plaintiffs hereby demand a trial by jury.

PRAYER FOR RELIEF

W$tEREFORE, Plaimiffs Adam Pritchard, Edward Robinson and Julenne Tucker,

on behalf of themselves and on behalf of a class of others similarly situated, request that

this Honorable Court grant them the following relief:

A. An order certifying this action as a class action pursuant to Fed. R. Cir. P. 23.

B. A judgment against all Defendants, jointly and severally on Plaintiffs" First

and Fourth Causes of Action detailed herein, awarding Compensatory Damages to each

named Plaintiff and each member of the proposed class in an amount to be determined by

a Jury and/or the Court on both an individual and a class wide basis.

C.

A judgment against Defendant Patrick Gallivan on Plaintiffs’ First Cause of

Action for $1,000,000.00 in punitive damages.

D.

A judgmem against Defendant Timothy Howard on PIaimiffs’ First Cause of

Action for $1,000,000.00 in punitive damages.

E.

A judgment against Defendant Donald J. Livingston on Plaintiffs’ First Cause

of Action for $1,000,000.00 in punitive damages.

26

A judgmem against Defendant Robert Huggins on Plaintiffs’ First Cause of

Action for $1,000,000.00 in punitive damages.

G.

A judgment against Defendant H. McCarthy Gibson on Plaintiffs’ Fh-st Cause

of Action for $1,000,000.00 in punitive damages.

H.

A declaratory judgment against all Defendants deelaring the County of Erie

and the Erie County Sheriff’s Department’s policy, .practice and custom of strip and

visual cavity searching all detainees entering the ECCF and/or the ECHC, regardless of

the crime charged or suspicion of contraband, to be unconstitutional and improper.

I.

A preliminary and permanem injunction enjoining Defendants from

continuing to strip and visual cavity search individuals charged with misdemeanors or

minor crimes absent particularized, reasonable suspicion that the arrestee subjected to the

search is concealing weapons or other contraband.

J.

A monetary award for attorney’s fees and the costs of this action,, pursuant to

42 U.S.C. § 1988 and Fed. R. Civ. P. 23;

27

Dated: July 22, 2004 Albany, NY

Elm~K~~e ~~--Respect full)~ubmit ted ~: ~

Member of the Bar of the

U.S. District Court for the Western District of New York

One Steuben Place Albany, NY 12207

Telephone:

518.434.1718

Telecopier:

877.471.3092

Electronic Mail: bobkeach@keaehlaw.com

Bruce E. Menken, Esquire

Jason J. Rozger, Esquire

BERANBAUM, MENKEN, &

BEN-ASHER, LLP

Three New York Plaza

New York, NY 10004

Telephone:

212.509.1616

Tetecopier:

2t 2.509.8088

Electronic Mail: jrozger@bmbf.com

Gary E. Mason, Esquire

Charles Schneider, Esquire

THE MASON LAW FIRM, PLLC

"

1225 19t~ Street, NW

Suite 600

Washington, DC 20036

Telephone:

202.429.2290

Telecopier:

202.429.2294

Electronic Mail: gmason@masonlawdc.eom

28

Jonathan W. Cuneo, Esquire

Charles LaDuca, Esquire CUNEO WALDMAN & GILBERT, LLP

317 Massachusetts Avenue, N.E. Suite 300

Washington, DC 20002

Telephone:

202.789.3960

Telecopier:

202.789.1813

Electronic Mail: ChartesL@cuneotaw.com

ATTORNEYS FOR PLAINTIFFS AND PROPOSED CLASS

29

 
 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

________________________________________

ADAM PRITCHARD, EDWARD

:

ROBINSON, and JULENNE TUCKER,

:

both individually and on behalf of a class of

:

others similarly situated,

:

Plaintiffs,

:

:

v.

:

:

THE COUNTY OF ERIE, PATRICK M.

:

GALLIVAN both individually and in his

:

official capacity as Sheriff of the County of

:

Erie, TIMOTHY HOWARD, both

:

individually and as Undersheriff of the

:

County of Erie, DONALD J.

:

LIVINGSTON, both individually and as

:

Acting Superintendent of the Erie County

:

Correctional Facility, ROBERT HUGGINS,

:

both individually and as Deputy

:

Superintendent of the Erie County

:

Correctional Facility, and H. McCARTHY

:

GIBSON, both individually and as

:

Superintendent of the Erie County Holding

:

Center,

:

:

Defendants.

:

:

Hon. Hugh B. Scott 04CV534C

STIPULATION AND ORDER

WHEREAS, the Defendants are represented by counsel;

WHEREAS, the Defendants COUNTY OF ERIE, PATRICK M. GALLIVAN,

TIMOTHY HOWARD, DONALD J. LIVINGSTON, and ROBERT HUGGINS, in their Answer

dated September 16, 2004, asserted a cross-claim against Defendant H. McCARTHY GIPSON;

WHEREAS, the Defendant H. McCARTHY GIPSON (incorrectly sued herein as H.

McCARTHY GIBSON), in his Answer dated September 16, 2004, asserted a cross-claim against

the Defendants COUNTY OF ERIE, PATRICK M. GALLIVAN, TIMOTHY HOWARD,

DONALD J. LIVINGSTON and ROBERT HUGGINS;

WHEREAS, the Defendants each have agreed between themselves to withdraw their

respective cross-claims asserted in their original answers and to serve amended answers,

IT IS HEREBY STIPULATED AND AGREED AS FOLLOWS:

1. That the Defendants COUNTY OF ERIE , PATRICK M. GALLIVAN, TIMOTHY

HOWARD, DONALD J. LIVINGSTON and ROBERT HUGGINS hereby agree

to withdraw their cross-claim against Defendant H. McCARTHY GIPSON; and

2. That the Defendant H. McCARTHY GIPSON hereby agrees to withdraw his cross-

claim against the Defendants COUNTY OF ERIE, PATRICK M. GALLIVAN,

TIMOTHY HOWARD, DONALD J. LIVINGSTON and ROBERT HUGGINS .

STIPULATED AND AGREED TO BY:

/s/Thomas C. D’Agostino Thomas C. D’Agostino MATTAR, D’AGOSTINO & GOTTLIEB, LLP Attorneys for Defendant H. McCarthy Gipson 17 Court Street Buffalo, New York 14202-3294 (716) 856-4022

/s/Frank Gaglione Frank Gaglione HISCOCK & BARCLAY, LLP Attorneys for Defendants County of Erie, Patrick M. Gallivan, Timothy Howard, Donald J. Livingston and Robert Huggins 3 Fountain Center 1100 M&T Center Buffalo, New York 14203-1486 (716) 856-5400

SO ORDERED:

s/HBS Honorable Hugh B. Scott United States Magistrate Judge

Buffalo, New York June 23, 2005

2

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ADAM PRITCHARD, EDWARD ROBINSON and JULENNE TUCKER, both individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE COUNTY OF ERIE, et al., Defendants.

Hon. Hugh B. Scott 04CV534C Order

Before the Court are defendants’ motions to compel (Docket Nos. 16 (County and most Sheriff’s officials, hereinafter “County Defendants”), 22 (Gipson1)), plaintiffs’ omnibus motion for various forms of relief (Docket No. 25), and the County Defendants’ motion for a protective order against ex parte communication with Erie County Sheriff’s deputies by plaintiffs’ counsel (Docket No. 402). This case was referred to the undersigned with full pretrial authority (Docket No. 5).

1Plaintiffs misidentify defendant Gipson as “Gibson.” Cf. Docket No. 33, Pls. Atty. Affirm. ¶ 2.
2This motion substitutes for an earlier motion, Docket No. 38, that defendants attempted to file. That earlier motion was garbled in transmission and was terminated from the motion list.

BACKGROUND Defendants here are Erie County, its former Sheriff Patrick Gallivan, present Sheriff Timothy Howard, and various Sheriff’s Department officials responsible for the Erie County Holding Center and Erie County Correctional Facility. Note, currently no Sheriff’s deputy or lower ranked officer is a party in this action. Plaintiffs currently are three persons formerly incarcerated in either facility for non-felony violation, misdemeanor or traffic infractions. They allege that they were strip searched while in County custody in 2003-04 (Docket No. 1, Compl. ¶¶ 3-5). Plaintiffs allege a class consisting of others who were similarly strip searched, from July 22, 2001, while entering either the Holding Center or the Correctional Facility regardless of the offense charged against them (see Docket No. 1, Compl. at 1-2, ¶ 15), although the named plaintiffs allege being searched later. By stipulation, the motion for class certification has been adjourned to October 21, 2005 (see Docket No. 28; see also Docket No. 13, Scheduling Order (setting motion to certify class deadline to Aug. 28, 2005)).3 Defendants answered (Docket No. 3, Gallivan, Howard, Huggins, Livingston, Erie County; Docket No. 4, Gipson), alleging cross-claims against each other. On June 23, 2005, these defendants entered into a stipulation to dismiss these cross-claims (Docket No. 15). Plaintiffs announce in these motion papers that claims by plaintiff Julenne Tucker as a class representative (Docket No. 25, Pls. Atty. Affirm. ¶ 10 n.1) and generally (see Docket No. 33, Pls. Atty. Aff. ¶ 10) may be dismissed upon counsel contacting Tucker.
3The Scheduling Order in this case closed discovery on class certification on August 23, 2005; closes fact and expert discovery by April 6, 2006, and scheduled dispositive motions by August 15, 2006, Docket No. 13, Feb. 23, 2005.
2

Defendants’ Motions to Compel The County Defendants seek an Order compelling plaintiffs to respond to their discovery
demands, seeking as a sanction preclusion of evidence at trial (Docket No. 16). They objected to the initial disclosures made by plaintiffs, contending that they failed to fully identify witnesses (id., County Defs. Atty Aff. ¶¶ 5-19, Exs. B, C), provide witness statements (id. ¶ 20), or a computation of their damages (id. ¶¶ 21-23). They also seek plaintiffs document production (id. ¶¶ 28-29, Exs. D, E), in particular documents related to the allegations in the Complaint; statements by County employees past or present; documents regarding the arrests of plaintiffs Robinson and Tucker (id. ¶ 39, Ex. D, document requests 1, 2, 13, 14). They further seek answers to their Interrogatories (id. ¶¶ 40-41, Ex. F, E), in particular queries about plaintiffs Robinson and Tucker (id. ¶¶ 44, 45). These defendants outlined their conferences with plaintiffs in an attempt to obtain this material (id. ¶¶ 53-55).
Defendant Gipson also moves for an Order to compel plaintiffs, seeking to preclude admission of evidence for plaintiffs’ failure to produce (Docket No. 22). Gipson claims that plaintiffs failed to produce any documents to him or answer his Interrogatories (Docket No. 23, Gipson Atty. Aff. ¶¶ 6, 11). Plaintiffs’ Omnibus Motion
Pursuant to the status conference held on August 3, 2005 (Docket No. 21), the Court gave the parties until August 10, 2005, to file any additional motions on subjects discussed during that conference. Plaintiffs then moved for several forms of relief (to compel production of booking sheets and answers to interrogatories regarding the dismissal of cross-claims against defendant Gipson, to obtain a protective order against speaking objections during depositions, to grant them
3

leave to intervene two additional parties as plaintiff-representatives (Docket No. 25)). But
plaintiffs filed this motion a day after the deadline set by this Court’s direction (see Docket No.
21) and also without filing any proof of service. This is striking since (as noted during the
August 3, 2005, conference, cf. Docket No. 21) plaintiffs objected to defendants sending
correspondence to the Court without copying all of plaintiffs’ counsel. Plaintiffs, thus, needed to
file proof of service of this motion. Upon instruction from chambers, plaintiffs did file
certificates of service for the motion papers filed (Docket Nos. 36, 37)4. In order to not delay this
action further, this motion was governed by the briefing schedule described below for the defense
motions.
County Defendants’ Motion for Protective Order
At the August 3, 2005, conference, defense counsel for the County Defendants raised
their objection to plaintiffs’ counsel contacting certain County Sheriff’s department employees
outside of defense counsel’s presence (see Docket No. 21). Plaintiffs then replied that they only
spoke to Sheriff’s department employees to serve them with subpoenas. The County Defendants
4Federal Rule of Civil Procedure 5(d) requires that a certificate of service be filed with a copy of the served paper. See 4B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1150, at 458 (Civil 3d ed. 2002). The Court may deny a motion because no certificate of service was attached to it. See Evans v. Port Auth. of N.Y. and N.J., 246 F. Supp. 2d 343, 344 (S.D.N.Y. 2003); Marbly v. Home Properties of N.Y., 183 F. Supp. 2d 950, 954 (E.D. Mich. 2002). Even with the Court’s Electronic Case Filing system parties are still required to file proof of service. See W.D.N.Y. Admin. Procedures Guide ¶ 2(f)(ii), at 6 (June 2004). Plaintiffs’ counsel assumed that this District’s rule was similar to his understanding of the Northern District of New York’s rule that the Electronic Case Filing notice of filing also served as proof of service without requiring filing a separate document, but cf. N.D.N.Y. Gen. Order 22, Admin. Procedures for Electronic Case Filing 5.3 (Dec. 3, 2004) (court still requires certificate of service).
Nevertheless, defendants have responded to plaintiffs’ motion (Docket Nos. 31, 33) without raising an objection to the lack of proof of service. The Court will consider plaintiffs’ omnibus motion and their response to defendants’ motions.
4

apparently dropped the matter (Docket No. 41, County Defs. Atty. Affirm. ¶ 10). But plaintiffs renewed their intention to question as witnesses Sheriff’s department employees, contending that they are not represented by defense counsel (id. Ex. B), and the County Defendants renewed their objection (id. ¶¶ 11, 12, Ex. D). Despite this Court’s Order (Docket No. 28; see Docket No. 44) calling for motions on issues raised on August 3, 2005, to be filed by August 10, 2005, the parties stipulated to the County Defendants making their motion for a protective order by August 22, 2005 (Docket No. 41, County Defs. Atty. Affirm. ¶¶ 12-13). The County Defendants’ last motion (Docket No. 40) obviously was beyond the August 10, 2005, motion deadline, but that motion alleged actions by plaintiffs after that deadline that require the Court to consider this otherwise late motion (see Docket No. 44). Briefing Schedules
In order to expedite this matter, the parties entered into stipulations to a filing and briefing schedule for these motions (letter of James Domagalski to chambers, Aug. 9, 2005). Pursuant to the parties’ stipulated schedule, responses to all motions then pending were due on or before August 17, 2005, and any reply was due on or before September 1, 2005. As for the County Defendants’ motion for a protective order, responses were due by September 1, 2005, and any reply was due by September 16, 2005 (Docket No. 44). Oral argument for all motions was held on September 20, 2005, and the motions then were deemed submitted and the Court reserved decision. (Docket Nos. 28, 34, 44, 51.)
DISCUSSION The tenor of the moving papers in this action (e.g., Docket No. 47, Pls. Reply Affirm. ¶ 2), argument of these motions, and prior submissions to and appearances in this Court, indicate
5

a rancor and vitriol that is contrary to the spirit of the discovery and pretrial rules in this Court. Counsel have accused each other of stonewalling (Docket No. 29, County Defs. Memo. at 1; Docket No. 45, County Defs. Reply Affirm. ¶ 3), making frivolous or unsubstantiated discovery requests or claims (e.g., Docket No. 30, County Defs. Affirm. ¶¶ 4-6; cf. Docket No. 47, ¶ 2). One part of plaintiffs’ omnibus motion (Docket No. 25, Pls. Motion Affirm. ¶ 19) and defendants’ response to that motion (Docket No. 30, County Defs. Affirm. ¶¶ 67-73) address how depositions were conducted, alleging conduct that may violate Rule 30. This atmosphere of litigation has resulted in multiple motions and acrimony where it is not required. If necessary, the Court may take a more hands-on approach to managing discovery in this action. As parties are aware, such an approach is time consuming and potentially expensive for all concerned. It is hoped that future conduct of this case will not warrant such extreme judicial intervention in processes that are designed to run without such participation. I. Motions to Compel
A. Standard Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d 1994). “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” Fed. R. Civ. P. 26(b)(1). Initial disclosure includes producing “a copy of, or a description by
6

category and location of, all documents . . . that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims . . . .” Fed. R. Civ. P. 26(a)(1)(B). Evasive or incomplete disclosure is to be treated like a failure to disclose. Fed. R. Civ. P. 37(a)(3).
All defendants move to compel and for other relief under Rule 37(a)(2)(A) (failure to produce initial disclosure), (B) (failure to respond to document demands or interrogatories), or (c)(1) (failure to disclose initial disclosure precludes use of material not disclosed as evidence), (2) (failure to respond to admit to genuineness of document), although Gipson does not complain about plaintiffs’ initial disclosure. (Docket No. 16, County Defs.’ Notice of Motion at 1; Docket No. 22, Gipson’s Notice of Motion at 1.) Failure to produce and compelling the opponent to seek an order compelling discovery exposes the party (and/or its attorney) to sanctions. See generally id. R. 37. Even if the party produces discovery in the face of a motion to compel, that party remains subject to Rule 37 sanctions, see id. R. 37(a)(4)(A).
B. Application First, none of the moving defendants complain that plaintiffs failed to admit to the genuineness of a document or to any fact, hence relief under Rule 37(c)(2) is not applicable here.
1. County Defendants a. Initial Disclosure
The County Defendants seek initial disclosure identifying the potential class members and witnesses as well as discovery demands and interrogatories to flesh out the arrest histories of plaintiffs Robinson and Tucker. During oral argument, they asserted that plaintiffs did not reveal information about two witnesses who eventually were deposed and were the apparent source of
7

plaintiffs’ contention of a de facto strip search policy. As for the initial disclosure, plaintiffs object to providing the names and addresses of individuals they interviewed since they now declare that the do not intend to call them as witnesses and that production of the list would be revealing attorney work product (Docket No. 33, Pls. Memo. at 1). The County Defendants reply that they seek only the witnesses to the alleged strip searches, not those plaintiffs’ counsel interviewed (Docket No. 45, County Defs. Reply Affirm. ¶ 21), also arguing that even if they sought counsel’s interview notes they would not constitute attorney work product (id. ¶ 27).
Plaintiffs probably undertook this effort to identify possible class members as well as potential witnesses to strip searches. Rule 26(a)(1)(A) calls for disclosure of names and (if known) addresses and telephone numbers of “each individual likely to have discoverable information that the disclosing party may use to support its claim . . . identifying the subjects of information.” Fed. R. Civ. P. 26(a)(1)(A); see Fed. R. Civ. P. 26 2000 Adv. Comm. Notes (2000) (hereinafter “2000 Advisory Notes”). If plaintiffs intend to stay with their position, they may be precluded at a latter time from using any undisclosed persons, even at a pretrial stage. See 2000 Advisory Notes at 731. Under Rule 26(a), parties are to disclose known witnesses.
Therefore, plaintiffs are to produce initial disclosure as known to plaintiffs to date. See also Fed. R. Civ. P. 26(e) (duty to supplement). Namely, plaintiffs are to disclose individuals likely to have discoverable information that they intend to use during the course of this action (including potential parties and witnesses as well as other uses), with the caveat that plaintiffs will not be allowed to use known but undisclosed persons. This eliminates plaintiffs’ expressed concern about revealing attorney work product because plaintiffs identify only those persons they intend to use during the course of this litigation and this need not be all of the people contacted
8

by plaintiffs’ counsel. Plaintiffs thus would have to make a judgment now as to whom they intend to use. This disclosure is especially pertinent to identifying the potential scope of the class alleged, its numerosity, commonality of facts and claims, and other characteristics leading to the determination of the existence of a class here. Therefore, the County Defendants’ motion is granted.
b. Discovery Demands and Interrogatories As for the County Defendants’ discovery demands, plaintiffs respond that, where documents exist, they will supplement their responses within one week of their moving papers (Docket No. 33, Pls. Atty. Affirm. ¶¶ 3-10). As for Interrogatory 1, plaintiffs complain that it requires them to identify the class members who number in the thousands and is an example of oppression by interrogatory and grossly overbroad (id. ¶ 8). Plaintiffs also consider Interrogatory 8 overbroad because it calls for describing the searches of thousands of persons (id.). The County Defendants respond, in particular, that plaintiffs have not produced materials plaintiff Robinson stated in his deposition that he would attempt to locate (Docket No. 45, County Defs. Reply Affirm. ¶¶ 29-33) and no materials were produced for plaintiff Tucker (id. ¶¶ 37-38). If plaintiffs intended to withdraw claims by Tucker, they either should do so promptly or produce his materials (id.). Given plaintiffs’ promise to produce or supplement, the County Defendants’ motion is granted in part, modified in part, and otherwise deemed moot where plaintiffs have pledged to produce. Plaintiffs are to answer Interrogatory 8 regarding facts of the alleged strip searches, and may do so generally (such as describing a typical search as well as atypical examples, as well
9

as the purported searches conducted upon the named plaintiffs). If plaintiffs fail to produce, or if their production is unsatisfactory, the County Defendants may renew their motion. As for plaintiff Tucker, plaintiff should either produce materials sought as to him or formally withdraw his claim within thirty (30) days of entry of this Order.
2. Defendant Gipson Separately, defendant Gipson contends that plaintiffs have not produced any documents he requested and have not answered his interrogatories (Docket No. 23). Plaintiffs respond that they will provide responses to Gipson’s demands within one week of that response (Docket No. 33, Pls. Atty. Affirm. ¶ 2), stating in oral argument on September 20, 2005, that responsive production was completed. The motion to compel is thus moot. Again, if plaintiffs fail to produce as promised (or their production is somehow incomplete or unsatisfactory), Gipson may renew his motion.
3. Sanctions a. Motion Expenses Sanction
“The administration of the rules lies necessarily within the province of the trial court with power to fashion such orders as may be deemed proper to vouchsafe full discovery for the just, speedy and inexpensive determination of the lawsuit.” Robison v. Transamerica Ins. Co., 368 F.2d 37, 39 (10th Cir. 1966) (Murrah, J.); see 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2284, at 614 & n.6 (Civil 2d ed. 1994).
Rule 37 requires the movant to certify that it conferred (or attempted to confer) with the recalcitrant party in good faith to secure discovery. Fed. R. Civ. P. 37(a)(2)(B); see W.D.N.Y. Local Civ. R. 37. The County Defendants allege good faith attempts to try to resolve their
10

disclosure and discovery issues with plaintiffs’ counsel prior to this motion (Docket No. 17, County Defs. Atty. Aff. ¶¶ 53-56) which plaintiffs do not dispute. Gipson makes general allegations at his attempts to confer with plaintiffs’ counsel to obtain the discovery sought (Docket No. 23, Gipson Atty. Aff. ¶¶ 19-20). He does not provide specific instances of contact with plaintiffs’ counsel. A single letter from counsel, for example, has been found to not sufficiently satisfy the duty to confer under Rule 37. Williams v. Board of County Comm’rs of Unified Gov’t of Wyandotte County & Kansas City, Kan., 192 F.R.D. 698, 699-700 (D. Kan. 2000); see Pulsecard, Inc. v. Discover Card Servs., 168 F.R.D. 295, 302 (D. Kan. 1996); Time Inc. v. Simpson, No. 02 Civ. 4917, 2002 WL 31844914, at *2 (S.D.N.Y. Dec. 18, 2002) (denying costs where movant failed to meet and confer). In Time Inc., the court noted that the failure to meet and confer forgoes the opportunity for the parties to narrow the issues before seeking court intervention, although the court considered the merits of plaintiff’s motion to compel. 2002 WL 31844914, at *2.
Plaintiffs argue that Gipson did nothing to secure his entitlement to production and that what would be produced is duplicative of materials produced to the County Defendant (Docket No. 33, Pls. Atty. Affirm. ¶ 2). But under Rule 37 even if the party produces discovery in the face of a motion to compel, that party remains subject to Rule 37 sanctions, see Fed. R. Civ. P. 37(a)(4)(A). If a motion to compel is granted or if a party (like plaintiffs here) provides disclosure after a motion to compel is filed, the court “shall” require the opposing party (and/or counsel advising that party) to pay to the moving party their reasonable motion expenses, unless the Court finds that the refusal to produce was substantially justified or other circumstances makes an award of expenses unjust. Fed. R. Civ. P. 37(a)(4)(A).
11

The County Defendants sufficiently showed good faith efforts to resolve short of motion practice to warrant sanction for their motion and their motion for sanctions (Docket No. 16) is granted. Gipson in his motion (Docket No. 22), however, has not sufficiently alleged such good faith efforts, merely making his motion as the other defendants did without making the effort to first request production. As a result, Gipson will be denied recovery of his motion costs as a sanction. As detailed in the Conclusion of this Order, the County Defendants are to file an affidavit of their reasonable costs associated with their motion (Docket No. 16) within five (5) business days (see also Fed. R. Civ. P. 6(a) (calculation of time for less than ten day period)); plaintiffs may file a responding affidavit within five (5) business days of service of that applying affidavit. No reply papers will be accepted on the fee applications. The Court will deem the motion submitted as of the time for plaintiffs’ responding paper.
b. Preclusion The County Defendants alternatively move for evidence preclusion under Rule 37(c)(1) and (2) for plaintiffs’ failure to make mandatory disclosures (Docket No. 16). The dismissal of a claim, defense or preclusion of evidence for failure to respond to a discovery request is a drastic remedy. Burnett v. Venturi, 903 F. Supp. 304, 309 (N.D.N.Y. 1995); see National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976) (per curiam) (hereinafter “NHL”) (dismissal as severest sanction). Rule 37(c)(1) provides that if a party refuses to disclose information required by Rule 26(a) (unless such refusal is harmless) is not permitted to use as evidence at trial, at a hearing, or on a motion, any witness or information not disclosed. “In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions,”id., including paying reasonable motion
12

expenses caused by the failure, sanctions authorized by Rule 37(b)(2)(A) (facts established), (B) (refusing to allow disobedient party to support claim or defense), or (C) (striking pleadings), or informing the jury of the failure to disclose. Fed. R. Civ. P. 37(c)(1). Subsection (2) does not apply here, since it involves a party refusing to admit to the genuineness of a document or to the truth of a requested admission under Rule 36. Such preclusion ultimately may be dispositive and beyond the authority of the undersigned to order (as opposed to recommending in a Report & Recommendation, see 28 U.S.C. § 636(b)(1)(A), (B).
Gipson also seeks preclusion under Rule 37(c)(1) and (2). (Docket No. 22; Docket No. 23, Def. Atty. Aff. ¶ 2.) He seeks preclusion for plaintiffs’ failure to produce documents (Docket No. 23, Def. Atty. Aff. ¶ 9) or answer his Interrogatories (id. ¶ 16). At oral argument, Gipson joined the County Defendants in their motion regarding Rule 26 disclosure, although their motion papers only mentioned document production and interrogatories and do not state whether plaintiffs produced initial disclosure to Gipson, or not, or Gipson’s efforts to request such disclosure.
Rule 37(c) does not apply to the latter forms of discovery; as just stated it is limited to failures to make initial disclosures or admissions under Rule 36 or admit to the genuineness of a document. Rule 37(b), which authorizes evidence or issue preclusion, see Fed. R. Civ. P. 37(b)(A), (B), (C), applies to a party’s disobedience with a Court Order to compel production of some sort. Absent such an Order, a movant is not entitled to Rule 37(b) sanctions. See 8A Federal Practice and Procedure, supra, § 2289, at 669; United States v. Kattar, 191 F.R.D. 33, 35 (D.N.H. 1999) (quoting R.W. Int’l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15, 16 (1st Cir. 1991)). Sanctions (such as recovery of motion costs) are available under Rule 37(a)(4) only if a
13

party prevails at least in part, see Fed. R. Civ. P. 37(a)(4)(A), (C), or gains discovery in the face of the motion.
Gipson essentially seeks a sanction for failing to obey an Order to compel, Fed. R. Civ. P. 37(b)(2)(A)-(C), without an Order being entered. The relief available when a party fails to respond to a discovery demand is an Order to compel and sanctions of the reasonable costs associated with the motion to compel, Fed. R. Civ. P. 37(a)(2)(B), (4)(A). The enhanced sanction of Rule 37(b) arises because the party disregards both the discovery demand and the Court’s subsequent Order compelling production. See also Fed. R. Civ. P. 37(b)(2)(D) (in lieu of foregoing order, party could be held in contempt of court for failing to obey discovery order). Gipson’s request for relief could be construed as anticipating the breach of an Order to compel, but at this stage such anticipatory relief is not available.
But even if such an Order existed, rather than the extreme sanction of evidence preclusion, see NHL, supra, 427 U.S. at 643, the appropriate sanction here is awarding the successful movants the limited costs for this motion. See, e.g., Fisher v. Harris, Upham & Co., Inc., 61 F.R.D. 447, 451 (S.D.N.Y. 1973) (reduced monetary sanction imposed rather than striking answer and imposing three times greater monetary sanction), dismissed, 516 F.2d 896 (2d Cir. 1975). As for all defendants, evidentiary preclusion for plaintiffs’ failure to disclose mandatory disclosure at this stage is an extreme sanction. While plaintiffs’ counsel may have been aware of the two witnesses defense counsel cited in oral argument, the other witnesses were unknown to plaintiffs (in fact, the County Defendants were in a better position to identify these potential witnesses, either present or former Sheriff’s Department employees, or arrestees processed at the Holding and Correctional Centers). The better sanction, rather than preclusion,
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is awarding of costs relative to plaintiffs’ failure to make Rule 26(a) disclosure and that portion of defendants’ motion seeking relief for this omission. For failure to disclose, defendants shall submit affidavits as to their reasonable motion expenses relative only to plaintiffs’ failure (and not other aspects of their motions, which were dealt with above). II. Plaintiffs’ Omnibus Motion
Plaintiffs filed this omnibus motion seeking five forms of relief. First, plaintiffs seek production of the booking sheets in order to identify possible class members and witnesses to strip searches. Second, they seek answers to their interrogatories regarding the stipulated dismissal of the cross-claim against defendant Gipson, contending that Gipson had admitted liability prior to the stipulated dismissal. Third, plaintiffs want an order directing defendants not to make speaking objections during depositions. Fourth, they seek leave to amend the Complaint to allege two additional plaintiff-representatives, Travis McNamara and Douglas Stanley, although the last day to amend pleadings or add parties was June 1, 2005 (see Scheduling Order, Docket No. 13). Finally, fifth, plaintiffs seek enlargement of time beyond the stipulated extension of October 21, 2005, to give them 90 days from when defendants produce the booking sheets in order to make the class certification motion. Defendants also note that plaintiffs seek in camera inspection of documents noted in their privilege log; defendants argue that plaintiffs are not entitled to in camera inspection of those documents (Docket No. 30, County Defs.’ Atty. Affirm. ¶¶ 57-66, Ex. D; cf. Docket No. 25, Pls. Atty. Aff. ¶ 16, Exs. M, N).
Gipson only objects to the extension of the deadline for filing a motion to certify the plaintiff class beyond the stipulated date of October 21, 2005 (Docket No. 31, Gipson Atty. Aff. ¶¶ 2-10), while the County Defendants object to other remedies plaintiffs seek.
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A. Plaintiffs’ Discovery Motions 1. Compelling Production of Booking Sheets
Plaintiffs want production of booking sheets at the Erie County Holding Center from July 22, 2001, to the present, to identify potential class members or witnesses to instances of strip searches. They tied this production request to their ability to make an initial disclosure of witnesses (Docket No. 33, Pls. Memo. at 2). An example of the booking sheets is plaintiff Edward Robinson (Docket No. 25, Pls. Atty. Affirm. ¶ 13, Ex. L). They note that the United States District Court for the Northen District of New York has ordered production of these sheets in numerous cases. Bruce v. County of Rensselaer, No. 02CV847, Order, Feb. 3, 2003 (Homer, Mag. J.) (see Docket No. 25, Ex. G, hereinafter “Bruce”); Marriott v. County of Montgomery, No. 03CV531, Tr. Dec. 18, 2003, at 36-37 (Peebles, Mag. J.) (see Docket No. 25, Ex. H, hereinafter “Marriott”); McDaniels v. County of Schenectady, No. 04CV757, Order, Jan. 10, 2005, at 3-5 (Treece, Mag. J.) (see Docket No. 25, Ex. J), Protective Order, Jan. 11, 2005, at 2-6 (Treece, Mag. J.) (see Docket No. 25, Ex. K, hereinafter collectively “McDaniels”); see also id. Ex. I (argument of McDaniels motion)).
The County Defendants object to this production because of their relevance (or relevance of portions of information on the sheets) and the privacy rights of the subset of those listed on these sheets who were not convicted. Under New York Criminal Procedure Law § 160.50 arrest records (such as booking sheets) of those not convicted of an offense are to be sealed. The County Defendants contend that the United States District Court for the Northern District of New York did not consider the privacy concerns these defendants are now raising before this Court. They argued in oral argument that plaintiffs had other means to seek this information and, after a
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year’s investigation prior to filing this action and a year’s worth of discovery, did not investigate short of this drastic measure. Under defendants’ view, if produced at all, the booking sheets should be redacted to reveal information about those convicted of misdemeanors or violations, and not reveal information about those convicted of felonies (as irrelevant to plaintiffs’ claims) or all those found not guilty of any offense. Note, defendants have not discussed the burden imposed by producing these records. Plaintiffs seek information not to stigmatize arrestees identified in the booking sheets, especially those arrestees who were ultimately not convicted (cf. Docket No. 30, County Defs. Atty. Affirm. ¶ 17; Docket No. 25, Ex. H, Marriott Tr. at 14 (plaintiffs’ counsel arguing that they do not intend to violate arrestees’ privacy rights in seeking this production)) but to identify potential witnesses to strip searches and potential claimants.
But the Northern District of New York did consider privacy concerns under CPL § 160.50, among other privacy issues raised about the interests of the arrestees discussed in these records. (See, e.g., Docket No. 25, Ex. I, McDaniels Tr. at 46-48, Ex. H, Marriott, Tr. at 19-23 (defense arguing for prior notice to arrestees before releasing records)). But even if that court did not consider the impact on CPL § 160.50 to the extent that the County Defendants now desire, this Court has considered that provision in the arguments raised herein. This Court has weighed the centrality of the information contained in these booking sheets to plaintiffs identifying potential witnesses and class members with the privacy interests identified by defendants under CPL § 160.50 and concludes that, with redaction as to be described, plaintiffs should receive access to these records.
Therefore, defendants are to produce redacted version of the booking sheets, either redacted sheets or a summary chart containing information from the sheets. The redactions
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should exclude information (1) of those convicted of felonies; (2) for those whose charges were adjudicated but were not convicted. Defendants do not object to redaction of these booking records being onerous or burdensome. Plaintiffs’ motion for production of these booking sheets is granted in part as follows: information from these sheets shall be redacted or produced in summary form identifying the name, address, telephone number, date of birth, arresting charge, and date of arrest, see Marriott, supra, Docket No. 25, Ex. H, at 36, for those arrestees who were arrested from July 2001 to present, but excluding those arrested who (a) were ultimately not convicted or (b) were convicted of felony offenses (see Docket No. 29, County Defs. Memo. at 11). The Court will enter a Protective Order regarding dissemination of information from these booking sheets to retain confidentiality, see Marriott, supra, Docket No. 25, Ex. H, Tr. at 36-37; McDaniels, supra, Docket No. 25, Ex. K. The Court declines the County Defendants’ suggestion to have plaintiffs notify individuals listed in the produced redacted booking sheets (cf. Docket No. 29, County Defs. Memo. at 11).
2. Interrogatories Regarding Dismissed Gipson Cross-Claims The County Defendants initially alleged a cross-claim against Gipson that “upon information and belief, any injuries or damages sustained by the plaintiffs as alleged in the Complaint, if not caused by reason of the negligence, carelessness or other culpable conduct of the plaintiff, were caused or contributed to by the negligence, carelessness or other culpable conduct of the defendant, GIPSON. Upon information and belief, some of that conduct may have occurred outside the scope of GIPSON’s employment.” (Docket No. 3, County Defs. Ans. ¶ 32; see Docket No. 25, Pls. Atty. Aff. ¶¶ 5, 7, Ex. C). Defendant Gipson in his Answer asserted a parallel cross-claim against the County Defendants (Docket No. 4, Gipson Ans. ¶¶ 48-49). The defendants then entered into a stipulation dismissing
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their respective cross claims (Docket No. 15). Plaintiffs now want discovery about the factual basis for the cross-claim against Gipson. They claim that Gipson sent a memorandum to his subordinates which they allege admits to the existence of a blanket strip search policy prior to September 2003 (Docket No. 25, Pls. Atty. Affirm. ¶ 5; Ex. D) and that Gipson’s deposition testimony made further admissions (id. Affirm. ¶ 5). Plaintiffs, however, did not include portions of Gipson’s transcript to show these admissions or paraphrase those admissions in their voluminous motion papers. The memorandum in question, dated August 27, 2003, stated that “routine or universal strip searches of newly admitted inmates” was found to be unconstitutional and effective immediately “no routine or universal strip searches are to be administered to any newly admitted inmate.” The memorandum then outlines the circumstances when such strip searches could occur. (Id. Ex. D.)
The County Defendants5 argue that the cross-claim was filed upon information and belief without any prior factual determination of the accuracy of plaintiffs’ underlying claim (Docket No. 30, County Defs. Atty. Affirm. ¶ 48). They explain the August 27, 2003, memorandum as part of “a continuing effort to advise Sheriff’s Department employees of their responsibilities with respect to strip searches and the fact that blanket strip searches could not be conducted.” (Id. ¶ 53.) They denied the existence of blanket strip searches (id. ¶ 54).6
5Interestingly, defendant Gipson does not comment about this portion of plaintiffs’ motion, cf. Docket No. 31, Def. Atty. Affirm., although during oral argument he joined in the arguments of the County Defendants.
6The counsel for the County Defendants make various disparaging remarks about plaintiffs’ contentions in this portion of his affirmation, Docket No. 30, ¶¶ 52 (“far-fetched allegations,” “unsubstantiated hyperbole generated regularly by the plaintiffs”), 54 (plaintiffs’ “unilaterally spin a single memo out of context” as “typical” of their approach). As noted at the outset of the Discussion in this Order, such advocate hyperbole needs to cease.
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The cross-claim seems to be the standard allegation among multiple defendants, preserving the right of the alleging defendants against a codefendant in the event plaintiff prevails against any of them to ensure indemnification or, in this instance, to allow the municipal defendant to disclaim indemnification of one of its officials if it is later determined that the individual defendant caused the injuries (see id. ¶ 49). Therefore, plaintiffs’ motion to compel answer to their interrogatories on this issue is denied.
3. Speaking Objections and Conduct of Depositions Plaintiffs moved for a protective order regarding the manner of the conduct of depositions (Docket No. 25, Pls. Atty. Affirm. ¶ 19). Defendants contend that they will adhere to the Rules already in place regarding speaking objections (Docket No. 29, County Defs. Memo. at 14-15), noting that plaintiffs’ counsel disrupted depositions (id. at 15-16; Docket No. 30, County Defs. Atty. Affirm. ¶¶ 67-69, Ex. E), but did not formally move for an order to sanction such conduct. Federal Rule of Civil Procedure 30(d)(1) states that objections during an examination are to be “stated concisely and in a non-argumentative and non-suggestive manner.” Fed. R. Civ. P. 30(d)(1). Cf. Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). Rule 30(d)(3) provides that “if the court finds any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the person responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.” Defendants request (but have not formally cross-moved) that all counsel be admonished to follow the Rules (Docket No. 29, County Defs. Memo at 16). The Court agrees; all counsel are reminded and admonished to follow those rules and not make suggestive objections, speaking objections or other actions that would frustrate the conduct and completion of depositions, see
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Fed. R. Civ. P. 30(d)(1), (d)(3); cf. 28 U.S.C. § 1927; compare DirecTV v. Rowland, Case No. 04CV297, Docket No. 45 (W.D.N.Y. May 27, 2005) (Scott, Mag. J.) (sanctioning defense counsel for conduct during client’s deposition). As a result, plaintiffs’ motion is denied in part, since a protective order (and its award of expenses under Rules 26(b) and 37(a)(4)) will not be issued, and granted in part, that all parties are reminded of their continuing obligations under the Federal Rules. As stated in the introduction to the discussion of this Order, if necessary, the Court will engage in more aggressive supervision of discovery in this case, including monitoring of depositions.
As of now, neither party will be awarded sanctions for this portion of the motion. If parties deviate from this particular rule, the Court may entertain a motion for sanctions or, as indicated previously, take a more active supervision of the completion of discovery in this case. But, given the tenor of this litigation to date, the Court is not issuing an invitation for the parties to find reasons or create cause for further ancillary motion practice over sanctions and potentially sanctionable conduct.
4. In Camera Inspection of Privilege Log Items Plaintiffs also seek Court review of documents identified in defendants’ privilege log to make sure that they are appropriately designated as attorney-client documents (Docket No. 25, Pls. Atty. Aff. Exs. M, N; Docket No. 30, County Defs. Atty. Affirm. Ex. D). Defendants object to in camera inspection of items listed in their privilege log (Docket No. 30, County Defs. Atty. Affirm.). The amended log itself (Docket No. 25, Ex. N, Docket No. 30, Ex. D) identifies documents either seeking legal advice by defendants or communication from attorneys to defendants (setting up meetings or rendering legal opinions and analysis).
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At argument, the County Defendants offered to submit an in camera affidavit apparently outlining the contents of the privilege log documents to justify the privilege asserted. During argument, the Court questioned the role of the County Attorney’s office in this matter, noting its dual role as legal advisor and advocate in the pending action and its role as policy advisor. The Court raised concerns that the log did not sufficiently identify attorney-client communication or particularize the contents of the claimed items, especially communications between the County Attorney’s office and the Sheriff’s Department prior to commencement of this action, given the dual role of advocate/advisor and policy advisor the County Attorney has. Therefore, plaintiffs’ motion for in camera inspection is granted. The Court will review the privileged log documents and determine if the asserted privilege appropriately applies to each of the documents.
5. Sanctions under Rule 37 The prevailing party in a motion to compel is entitled to its reasonable expenses. Fed. R. Civ. P. 37(a)(4). Here, plaintiffs prevail in obtaining redacted version of the information from defendants’ booking sheets and in camera inspection of the privilege log documents, but do not prevail in their motion for answers to their interrogatory regarding the dropped cross-claim against Gipson. Accordingly, plaintiffs are entitled to recover some of their reasonable motion expenses as to that portion of the motion to compel in which they prevailed. Similarly, defendants in successfully resisting parts of the omnibus motion to compel are entitled to their reasonable motion expenses. Determining these amounts, however, should not start a cottage industry of ancillary litigation. Here, plaintiffs sought six forms of relief, but only four of which are governed by Rule 37 and are subject to discovery sanctions. Since plaintiffs prevailed at two of the four forms of
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relief sought where discovery sanctions are available (the release of redacted information from the booking sheets and in camera inspection), plaintiffs counsel should reduce any reasonable motion costs either to one-third (two-sixths) of the omnibus motion’s costs or to the actual costs for the prevailing portion of the motion. Similarly, the County Defendants7 prevailed on two of the four discovery sub-motions (of the six total motions for various forms of relief), their reasonable motion costs should be calculated either one-third of the costs to respond to the omnibus motion or the actual costs for arguing the prevailing objections to that omnibus motion.
At the schedule set forth below, the prevailing parties should submit their respective reasonable costs associated with the portions of plaintiffs’ motion in which they prevailed.
B. Other Relief Sought by Plaintiffs 1. Motion for Leave to Amend to Allow Intervention
Plaintiffs seek to leave to have two additional representative plaintiffs, McNamara and Stanley, two persons allegedly strip searched while in Erie County custody, intervene in this action as possible class representatives (Docket No. 25, Pls. Atty. Affirm. ¶¶ 20, 21, Exs. Q, R). Plaintiffs state that plaintiff Tucker may no longer be representative of the class (Docket No. 25, Pls. Atty. Affirm. ¶ 10 n.1). Although the proposed Amended Complaint alleges instances when McNamara and Stanley were arrested on petty offenses and were strip searched (id. Ex. R, proposed Amended Compl. ¶¶ 6, 7, 66-70, 71-74), and plaintiffs’ counsel affirms that McNamara was strip searched several times during the proposed class period (id. ¶ 20), there is no separate sworn statement by the two proposed plaintiffs in support of their intervention in this action.
7Defendant Gipson did not object to the production issues raised by plaintiffs in their omnibus motion, hence he is not entitled to recover his costs in responding to plaintiffs’ motion.
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Plaintiffs argue that their motion to intervene is timely under Rule 24. Defendants were put on notice about these possible intervenors on June 14, 2005 (id. ¶ 20, Ex. P). Plaintiffs submitted with their motion a proposed Amended Complaint adding McNamara and Stanley as claimants (id. Exs. Q, R). Plaintiffs argue that defendants are not prejudiced by adding these parties. Plaintiffs state that they learned of Stanley shortly before the deadline to add parties or amend pleadings but knew of McNamara months beforehand. They argue that the County Defendants’ delay in producing booking sheets has hindered plaintiffs from making a more timely motion to intervene or for leave to amend (Docket No. 47, Pls. Reply Affirm. ¶¶ 9, 10). Plaintiffs do not detail when they learned of Stanley as a potential representative plaintiff. They do not explain why they failed to move to add McNamara as a plaintiff although conceding that they were aware of him months before learning of Stanley.
The County Defendants object to the timing of request, noting that McNamara and Stanley have not moved to intervene (Docket No. 29, County Defs. Memo. at 11-12).
Under the current Scheduling Order in this case (Docket No. 13), the deadline for motions to join parties and to amend pleadings was June 1, 2005. Plaintiffs provided initial notice of these potential intervenors on June 14, 2005, suggested intervention on the record at the August 3, 2005, conference, and made their motion on August 10, 2005. The County Defendants argue that there was no showing of good cause to justify an untimely amendment or motion for leave to add parties under Rule 16(b) and the Scheduling Order (Docket No. 29, at 11-12). See Carnite v. Granada Hosp. Group, 175 F.R.D. 439, 446 (W.D.N.Y. 1997) (Foschio, Mag. J.) (Report & Recommendation), adopted, 175 F.R.D. at 441 (Arcara, J.); see also In re Milk Products Antitrust Litig., 195 F.3d 430 (8th Cir. 1999). Defendants view this request as a veiled
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motion for leave to amend the Complaint (see also Docket No. 25, Exs. Q, R, proposed Amended Complaint). Under Federal Rule of Civil Procedure 15(a) amendment of pleading after the time to do so as of right requires either consent of all parties (not present here) or by leave of the Court. Under Rule 15(a) motions for leave to amend the complaint are to be freely given when justice requires. Granting such leave is within the sound discretion of the Court. Foman v. Davis, 371 U.S. 178, 182 (1962); Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971). “In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be ‘freely given.’” Foman, supra, 371 U.S. at 182 (quoting Fed. R. Civ. P. 15(a)). Carnite addressed plaintiff’s failure to move to amend the Court’s scheduling order and his failure to raise “even [a] facially persuasive reason” to grant relief. Carnite, supra, 175 F.R.D. at 448 (Foschio, Mag. J., R&R). Rule 24(b) intervention has to be timely to be granted and determining whether a motion to intervene is timely is within this Court’s sound discretion, United States v. Pitney Bowes, 25 F.3d 66, 70 (2d Cir. 1994).
Here, plaintiffs seek to have new parties intervene months after the deadline for such an intervention without a reasonable basis for excusing the lateness, having been aware of at least one of them within the time for a motion to add parties or for leave to amend the Complaint. The fact that plaintiffs have yet to receive defendants’ booking sheets does not explain their tardiness in seeking leave to add these potential representative plaintiffs. The absence of any statement from these parties themselves is also striking; aside from plaintiffs’ counsel’s declaration the
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Court has no indication that these potential intervenors are interested in being plaintiffs, much less potential class representatives. Therefore, this portion of plaintiffs’ omnibus motion is denied.
2. Enlargement of Time to Move for Class Certification The parties entered into a stipulation agreeing to extend the time for a motion to certify the class to October 21, 2005 (Docket No. 27), which this Court so ordered (Docket No. 28). Meanwhile, plaintiffs move to extend that deadline to 90 days from when defendants produce the booking sheets (Docket No. 25, Pls. Atty. Affirm. ¶ 22), later stating at oral argument that the deadline should start when all booking sheets were produced. Defendants oppose this further extension (Docket No. 31, Gipson Atty. Affirm.; Docket No. 30, County Defs. Atty. Affirm. ¶¶ 92-95). Once plaintiffs begin to receive data from the booking sheets, they will be in a better position to describe the potential class. The time stipulated by the parties, to October 21, 2005, is not adequate for plaintiffs to move to certify the class. Therefore, this portion of their omnibus motion is granted in part, but rather than set the start from when production of the booking sheets is complete (which is highly indefinite and, if defendants refuse to comply may delay certification indefinitely), the Court will set a deadline sixty (60) days from the stipulated October 21, 2005, date, to December 20, 2005, generous enough to make the motion while not dependent upon the vagaries of document production. This, however, will be the last extension of the class certification deadline. Whatever plaintiffs glean from the booking sheets they receive (and other discovery they obtain) should be sufficient to put together a motion to certify their proposed class.
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III. Ex Parte Communications with Sheriff’s Deputies Finally, the County Defendants complain that plaintiffs’ counsel have contacted County
Sheriff’s deputies ex parte whom defense counsel represents in this action. The County Defendants seek a protective order against such contacts (Docket No. 40), citing Disciplinary Rule 7-104(a)(1), 22 N.Y.C.R.R. § 1200.35(a)(1), and its restriction on counsel contacting represented parties in that manner, as well as the New York State Court of Appeals decision in Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493 (1990), and its definition of who is a corporate “party” under DR 7-104 that opposing counsel must avoid contacting. They argue that the lieutenants and sergeants plaintiffs seek to contact are supervisory personnel and the booking deputies have decision-making authority that should preclude ex parte communications (Docket No. 42, County Defs. Memo. at 3). Any admission by the deputies, sergeants or lieutenants would impute liability to the defendant County, therefore they should be beyond ex parte communication (id.). The County Defendants take the position that the booking deputies and those in the booking process are also parties and are represented by the County Defendants’ counsel, given plaintiffs’ claim of a de facto strip search policy (id. at 4, 1) and that these deputies are policy makers each time they implement the County’s intake policies (Docket No. 49, County Defs. Reply Atty. Affirm. ¶¶ 3-6). Plaintiffs reply that the sheriff’s deputies sought are rank and file officers who were witnesses and, under Niesig, are available for ex parte interviews by plaintiffs’ counsel (Docket No. 48, Pls. Memo. at 1, citing Niesig, supra, 76 N.Y.2d at 375, 559 N.Y.S.2d at 498-99).
Under Rule 26(c), the Court has power to protect against abuses in discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984). The appropriateness of a protective order is a
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balance of the litigation needs of the requesting party and the protect able interests of the party from whom discovery is sought. Mitchell v. Fishbein, 227 F.R.D. 239, 245 (S.D.N.Y. 2005). This Court has broad discretion in issuing such a protective order. Seattle Times, supra, 467 U.S. at 36.
A. New York Disciplinary Rule 7-104(a)(1) New York State Lawyer’s Code of Professional Responsibility Disciplinary Rule 7-104 provides that “during the course of the representation of a client a lawyer shall not: communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has prior consent of the lawyer representing such other party or is authorized by law to do so.” DR 7-104(a)(1), 22 N.Y.C.R.R. § 1200.35(a)(1). The issue, then, is who is a “party” governed by this disciplinary rule. B. Scope of Disciplinary Rule Preliminarily, this motion raises an issue of whether the Code of Professional Responsibility is binding in federal Court. Cf. Niesig, supra, 76 N.Y.2d at 369, 559 N.Y.S.2d at 495 (Code of Professional Responsibility does not have force of law). This Court is not bound by the Code of Professional Responsibility promulgated by the New York State Bar Association (or the Model Rules of Professional Conduct promulgated by the American Bar Association), but views its ethical considerations and disciplinary rules as a source of guidance. See Kubin v. Miller, 801 F. Supp. 1101, 1114 n.9 (S.D.N.Y. 1992); but cf. W.D.N.Y. Local Civ. R. 83.1(b)(6) (applicant attorneys agree to adhere faithfully to the Code of Professional Responsibility), (5)(G) (attorneys seeking admission to practice before this Court must have read and be familiar with
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Code of Professional Responsibility as interpreted by the U.S. Supreme Court, the U.S. Court of Appeals for the Second Circuit, and this Court). Other federal courts in this state, which require adherence to the Code of Professional Responsibility, have applied DR 7-104. See Miano v. AC&R Advertising, 148 F.R.D. 68, 74 75 (S.D.N.Y.) (Katz, Mag. J.), adopted, 834 F. Supp. 632 (S.D.N.Y. 1993) (Sand, D.J.); Katt v. New York City Police Dep’t, No. 95 Civ. 8283, 1997 WL 394593, at *4 (S.D.N.Y. July 14, 1997); Kennedo v. United States, No. CV-94-2252, 1995 U.S. Dist. LEXIS 21451 (E.D.N.Y. Jan. 9, 1995); see also Docket No. 42, County Defs. Memo. of Law at 3, 4; Docket No. 48, Pls. Memo. of Law at 2, attachments. The district court in Katt noted that the admissibility of employee statement is broader in federal court than New York courts. Katt, supra, 1997 WL 394593, at *4 (applying Fed. R. Evid. 801(d)(2)(D)).
As the Court of Appeals in Niesig, this Court will apply the Code of Professional Responsibility here “as guidelines to be applied with due regard for the broad range of interests at stake,” 76 N.Y.2d at 369-70, 559 N.Y.S.2d at 495.
C. Niesig In Niesig, plaintiff’s counsel sought to interview corporate defendant’s employees who witnessed an accident, raising the question of which corporate employees are considered the “party” for DR 7-104(1)(A) purposes. 76 N.Y.2d at 367, 559 N.Y.S.2d at 494. Plaintiff fell from a scaffolding at a construction site while employed by the corporate third-party defendant. Plaintiff sued and then sought to interview other employees as witnesses to the incident, id. at 367, 559 N.Y.S.2d at 494-95. The third-party defendant corporation resisted the ex parte interviews, citing DR 7-104. The lower courts answered that the employees were automatically
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the “parties” under DR 7-104 and could not be contacted ex parte by opposing counsel. Id. at 368, 559 N.Y.S.2d at 494.
The New York Court of Appeals disagreed, holding (as to current employees) that both a blanket ban on employee contact or restricting contact to “control group” of officials or employees do not achieve the goals of that disciplinary rule. See id. at 371-73, 559 N.Y.S.2d at 496-98. The court adopted a test that a corporate “party” includes “corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporation’s ‘alter egos’) or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel. All other employees may be interviewed informally.” Id. at 374, 559 N.Y.S.2d at 498. As noted by the court, “in practical application, the test we adopt thus would prohibit direct communication by adversary counsel ‘with those officials, but only those, who have the legal power to bind the corporation in the matter or who are responsible for implementing the advice of the corporation’s lawyer, or any member of the organization whose own interests are directly at stake in a representation.’” Id. at 374, 559 N.Y.S.2d at 498 (quoting Wolfram, Modern Legal Ethics, § 11.6, at 613 (Practitioners’ ed. 1986)). In Niesig, the Court of Appeals held that the employees that plaintiff wished to interview fell into the category of all other employees that may be interviewed, since they were merely witnesses to the event for which the corporate defendant was sued, id. at 375, 559 N.Y.S.2d at 498-99, allowing ex parte interviews of non-managerial employees, id. at 376, 559 N.Y.S.2d at 499. Judge Bellacosa, in concurring in Niesig, noted that the bar on ex parte communication from DR 7-104 also applies if the corporate employee retained counsel. Id., at 378, 559 N.Y.S.2d at 500-01.
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The County Defendants here emphasize that defense counsel also represents the sheriff’s employees that plaintiffs seek to question, having obtained waivers from their union representation (Docket No. 42, County Defs. Memo. at 2; Docket No. 49, County Defs. Reply Atty. Affirm. ¶¶ 10-12, see id. ¶¶ 7-9, Exs. A, B (regarding the steps from County Attorney’s representation to retain firm’s representation of the County Defendants)).
D. Application 1. Niesig
At issue under DR 7-104 as construed in Niesig is whether the Sheriff’s Department employees plaintiffs wish to contact are alter ego policy makers for the County and County Defendants or whose actions can be imputed to these defendant or who can bind the County. These employees currently are not parties in this action, although defense counsel for the County Defendants claims that it represents them. At oral argument, the County Defendants attempted to distance themselves from Niesig, distinguishing the private sector facts in that case from the public sector implicated here. The County Defendants, however, cite no authority distinguishing the public as opposed to private sector for corporate parties under DR 7-104. Niesig, in fact, was applied in public sector cases. E.g., Matter of Rahn v. Town of Greece, 226 A.D.2d 1105, 642 N.Y.S.2d 825 (4th Dep’t 1996) (town defendant cannot prohibit petitioner or his counsel from interviewing town employees who voluntarily agreed to be interviewed); Quintana v. City of N.Y., 259 A.D.2d 296, 689 N.Y.S.2d 408, 409 (1st Dep’t 1999) (not improper under DR 7104 for plaintiff’s investigator to interview superintendent, low-level official in defendant’s agency).
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Thus, there is a fact issue as to the role of the deputies plaintiffs intend to contact and whether they are policy makers or alter egos for the County. Do the deputies that conduct inmate intake or conduct a strip search (or those who witnesses such conduct) bind the County? The County Defendants’ position is akin to the blanket ban on contact of all employees rejected by the Court of Appeals in Niesig, merely by arguing that all employees plaintiffs wish to interview are “policymakers” and that their decisions in processing arrestees and inmates constitutes policy making. The line deputies that plaintiffs seek to interview certainly make decisions (such as how to conduct processing of arrestees, whether to search them and to what extent) but that does not make them “policymakers” that bind the County Defendants by their decisions. Defense counsel is not arguing that these deputies were acting upon the advice of counsel (be it theirs or the County Attorney’s office).
As a result, the actual rank and file Sheriff’s Department officers who conducted searches are not policy makers and, under Niesig and DR 7-104, should be available for plaintiffs to conduct ex parte interviews. The officers, absent a subpoena, are free to decline to speak with plaintiffs’ counsel or condition the interviews as the officers see fit; in turn, plaintiffs counsel may seek to depose these employees or seek subpoenas to examine them.
Officers at the rank of sergeant or lieutenant and above, however, have administrative and management functions that could be policymaking imputed to the County or the Sheriff (such as directing certain actions be undertaken that could be construed as County policy). These officers should not be contacted ex parte by plaintiffs. Again, this does not preclude any contact by plaintiffs with sergeants or lieutenants or higher ranking sheriff’s department officers and
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officials; it merely requires plaintiffs to seek interviews on notice and coordination with defense counsel, or by deposition upon notice or subpoena.
2. Claimed Representation of Individual Employees The fact that the County Defendants’ counsel claims to represent these non-parties is not material. The defense and indemnification provisions of state and local law, N.Y. Pub. Off. Law § 18; Erie County Charter § 602 (see Docket No. 49, County Defs. Atty. Reply Affirm. Ex. A), only apply if the public employee is sued or is otherwise made a party in the action. DR 7-104 prohibits communication with a “party” known to be represented by counsel on that matter; here, the rank and file deputies are not “parties” or known to be represented on this case, save defense counsel’s declaration and union acquiescence. This differs from the result in Pauling v. Department of the Interior, 964 F. Supp. 117, 118-19 (S.D.N.Y. 1997) (cf. Docket No. 42, County Defs. Memo. at 4), where the court sanctioned plaintiff from ex parte communication with a government employee that plaintiff’s counsel knew (and conceded) was represented by the government’s attorney. While the deputies’ union in this case may have authorized the County Attorney and his retained outside counsel to represent the deputies in this action, each deputy could have declined that representation (cf. Docket No. 48, Pls. Atty. Affirm. ¶ 4, Ex. C, current employee “told” that defense firm would represent her and she was denied option of retaining her own counsel). Further, since these deputies are not parties, the only possible notice to plaintiffs that these employees were represented is the statements by defense counsel leading to this motion for a protective order. See also McHugh v. Fitzgerald, 280 A.D.2d 771, 773, 719 N.Y.S.2d 785, 786-87 (3d Dep’t 2001) (prohibition in DR 7-104 does not apply before representation begins and adversary must be aware of representation in order to have prohibition take effect).
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Hence, the County Defendants’ motion is granted in part as to Sheriff’s Department employees at the rank of sergeant or higher, but denied in part as to lower ranking Sheriff’s Department employees.
E. Reasonable Expenses Under Rule 26(c), if a protective order is granted at least in part, the Court applies Rule 37(a)(4) standards to determine if sanctions are warranted. Under the latter rule, if a motion is granted in part and denied in part, the court may, after affording an opportunity to be heard, apportion the reasonable expenses to the motion among the parties and persons in a just manner. Fed. R. Civ. P. 37(a)(4)(C). Included in the argument of these motions was discussion of the reasonable costs for this motion. The Court finds that each party should bear its own costs for this motion. See Payne v. Howard, 75 F.R.D. 465, 472 (D.D.C. 1977) (neither side took position so unjustified as to warrant imposition of costs, ordering each party to bear its own costs). IV. Source of Sanctions The discussion above indicated instances when sanctions should be paid either for having a prevailing discovery motion or having successfully resisting such motions. The next issue is who has to pay this sanction, the clients or counsel. Courts have imposed discovery sanctions against attorneys for their conduct that lead to discovery motions, see 8A Federal Practice & Procedure, supra, § 2288, at 662 & n.23, including against government attorneys, see, e.g., U.S. v. Sumitoma Marine & Fire Ins., 617 F.2d 1365 (9th Cir. 1980). As noted at the beginning of the Discussion in this Order, counsel have proceeded with rancor and vitriol in the conduct of this case, in particular in the conduct of discovery and the motion practice surrounding discovery. There is no indication that this was done at the express urging of the clients. The three named
34

plaintiffs and the taxpayers of Erie County should not bear the results of the unreasonable and vexatious conduct, cf. 28 U.S.C. § 1927, to date of their counsel. Therefore, counsel shall be responsible for any sanction imposed by this Court and shall not pass this costs to their clients.
i i i i This Order ends as it began. Parties are reminded that the Court will no longer countenance the acrimony and bitterness in which pretrial matters have been handled. The sniping, sparring, and gamesmanship8 must stop. If it persists, however, the Court may resort to various devices under the Rules and within its inherent supervisory authority to control the conduct of the parties and counsel in this case, for example micro management of discovery or sanctions under Rules 11, 16(f), 37, and 28 U.S.C. § 1927 for unreasonable and vexatious conduct by counsel. This case needs to get to its merits and not dwell on arguments for the sake of vexatious litigation. Continuing down the current path of this action will inevitably lead to further delays, added expense, and ultimately justice denied.
CONCLUSION For the reasons stated above, defendants County of Erie, Gallivan, Howard, Livingston, and Huggins’ (the “County Defendants”) joint motion to compel (Docket No. 16) is granted in part, as modified, and with costs; defendant Gipson’s motion to compel (Docket No. 22) also is granted, with some costs, as described in detail above. In particular, plaintiffs either are to produce discovery responses as to plaintiff Julenne Tucker or formally withdraw Tucker’s claims within thirty (30) days of entry of this Order.
8Or, as succinctly and colorfully described at oral argument, “the crap.” 35

The County Defendants’ motion for a protective order (Docket No. 40) is granted in part, denied in part as described above, without costs to any party, cf. Fed. R. Civ. P. 26(c), 37(a)(4)(C).
Plaintiffs’ motion for various forms of relief (Docket No. 25) is granted in part as described in detail above (namely production of booking sheets and ordering in camera inspection of defendants’ privilege log documents, and extending time beyond the stipulated deadline for a motion for class certification, as described more fully above) and denied in part (namely interrogatory answers regarding the former cross-claim against defendant Gipson, an order of protection regarding the conduct of depositions; leave to amend the Complaint to add two additional plaintiffs). Plaintiffs have until December 20, 2005, in which to file their class certification motion; this is the final extension of the class certification deadline.
As for the reasonable discovery motion costs sanctions associated with the prevailing parties to these several motions, the prevailing parties (as identified above and as limited above) are to file and exchange affidavits of their respective reasonable motion costs within five (5) business days from entry of this Order; the opposing parties then may file a response within five (5) business days of service of that affidavit. No reply papers will be accepted on the fee applications. The Court then will deemed the fee applications submitted as of the latter date and will issue an Order awarding costs. Once determined, such sanctions shall be paid by the respective counsel responsible for the expense.
So Ordered. s/HBS
Hon. Hugh B. Scott United States Magistrate Judge
36

Dated: Buffalo, New York September 26, 2005
37

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ADAM PRITCHARD, EDWARD ROBINSON and JULENNE TUCKER, both individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE COUNTY OF ERIE, et al., Defendants.

Hon. Hugh B. Scott 04CV534C Order

Before the Court is plaintiffs’ motion to compel production of booking sheets (Docket No. 25), among the other relief sought by plaintiffs in that omnibus motion. This Court issued an Order (Docket No. 52, Sept. 26, 2005, familiarity with which is presumed) granting in part that motion (see Docket No. 52, Order at 17-18). That Order announced that a Protective Order would be entered regarding dissemination of information from these booking sheets to retain confidentiality, see Marriott v. County of Montgomery, No. 03CV531, Tr. Dec. 18, 2003, at 3637 (N.D.N.Y.) (Peebles, Mag. J.) (see Docket No. 25, Ex. H, hereinafter “Marriott”); McDaniels v. County of Schenectady, No. 04CV757, Protective Order, Jan. 11, 2005, at 2-6 (N.D.N.Y.) (Treece, Mag. J.) (see Docket No. 25, Ex. K, hereinafter “McDaniels Ex. K”), see also Docket No. 25, Ex. J, McDaniels, supra, Order, Jan. 10, 2005, at 3-5 (Treece, Mag. J.) (hereinafter “McDaniels Ex. J”). (Docket No. 52, Order at 17-18.) What follows is that protective Order.

DISCUSSION Erie County and Sheriff’s Department officials Howard, Livingston, and Huggins, and former sheriff Gallivan (hereinafter collectively “County Defendants”)1 objected to production of the booking sheets on privacy grounds (Docket No. 29, County Defs. Memo. at 3-11). Since the parties strenuously disagreed upon production of these booking sheets and could not agree upon a confidentiality agreement to obviate the need for plaintiffs’ motion, the Court decided to enter its own protective Order. The Court was guided by the United States District Court for the Northern District of New York and its protective orders in similar cases. See McDaniels Ex. K; see also Marriott. This Order addresses the concerns raised by the County Defendants (see Docket No. 29, County Defs. Memo. at 3-6, 8-11), especially the privacy issues arising from New York Criminal Procedure Law § 160.50. I. Method of Production Defendants are to produce the bookings sheets with redactions or produced in summary form identifying only the name, address, telephone number, date of birth, arresting charge, and date of arrest, see Marriott, supra, Tr. at 36, for those arrestees who were arrested from July 2001 to present, but excluding those arrested who (a) were ultimately not convicted or (b) were convicted of felony offenses (see Docket No. 29, County Defs. Memo. at 11). (Docket No. 52, at 17-18). (Hereinafter the booking sheets, any summaries of these sheets, and the data therefrom will be referred to collectively as the “booking sheets” despite the manner ultimately provided by
1Remaining defendant Gipson, at oral argument on September 20, 2005, joined in the arguments of co-defendants. Since the booking sheets are presumed to be under the control of the Sheriff, production will be assumed to be from the County Defendants.
2

defendants.) Defendants are to explain any coding or shorthand in booking sheets produced so that plaintiffs, and ultimately the Court, can decipher what has been produced. II. Confidentiality and Its Preservation
Information contained in the booking sheets shall be deemed confidential and subject to this protective Order. See McDaniels Ex. K, supra. Access to the data contained in the booking sheets shall be limited to counsel and those working directly with counsel on this case. Plaintiffs’ counsel shall maintain a list of those to whom this data has been disclosed, with this list available to the Court upon request of any person See Marriott, supra, Tr. at 37. Any person to whom information provided under this Order is disclosed must sign a statement agreeing to be bound by this protective Order. The signed statement, as annexed hereto as Exhibit A, shall contain a recital that the signatory has read and understands this Order, and that the signatory understands that unauthorized disclosures of the stamped “CONFIDENTIAL” documents (or information therefrom) constitutes contempt of court. See McDaniels, Ex. K, supra, at 4, Ex. A. Anyone who is permitted access to stamped “CONFIDENTIAL” booking sheets pursuant to this Order shall use the information only for preparation and the trial (itself) of this litigation and shall not use such information for any other purpose. Id. at 6.
Prior to defendants’ actual disclosure to plaintiffs of the booking sheets and information contained therein, these documents shall be marked “CONFIDENTIAL” in a manner that will not interfere with their legibility. Except with the prior written consent of the individual arrestee(s), individual stamped “CONFIDENTIAL” booking sheets may not be disclosed to any person (including the named plaintiffs) except for the attorneys for the parties and those employees and agents working directly with the attorneys, for use only in connection with this
3

action. Should an arrestee become a plaintiff to this action or is interviewed by either party, that arrestee may be shown his or her personal booking sheet or booking information derived from that sheet only. McDaniels Ex. K, supra, at 3-4.
To the extent that these booking sheets may be used at any one witness or party’s deposition as it may relate to this litigation, said booking sheets remains subject to this protective Order. Counsel must, within fifteen (15) days after receipt of any deposition transcript, designate pages of the transcript and/or exhibits thereto as confidential if related to disclosure of the booking sheets; until the expiration of the fifteen (15) day period, the entire deposition will be treated as subject to this protective Order. If counsel do not timely designate the confidential information in a deposition relating to a booking sheet, then the entire transcripts and its exhibits will be treated as confidential until such time this Court may lift the protection provided by this Order. Parties, however, need not re-designate as confidential a document previously so designated. Id. at 4-5.
The booking sheets that have been marked as “CONFIDENTIAL” pursuant to this Order shall continue to be treated as confidential information at trial. The trial court may determine how this information and/or documents shall be kept confidential at trial. Id. at 5.
The stamped “CONFIDENTIAL” booking sheets, or corresponding pages of deposition deemed confidential, shall not be filed with the Clerk, or submitted for filing by electronic case filing system, except when required in connection with motions under Rule 56 or other matters pending before the Court. If required to be filed, said documents shall be filed under seal and shall remained sealed so long as they retain their status as stamped “CONFIDENTIAL” documents. Id.
4

Nothing in this Order shall prevent or otherwise restrict counsel from rendering advice to their actual client(s), in the course thereof, relying generally on examination of stamped “CONFIDENTIAL” booking sheets, provided, however, that in rendering such advice and otherwise communicating with such client(s), counsel shall not make specific disclosure of any item so designated, except to have the client adhere to the procedures set forth above. Id. at 6. III. Duration of Order
The provisions of this Order shall not terminate at the conclusion of this action. Within thirty (30) days after final conclusion of all aspects of this litigation, which may include an appeal, stamped “CONFIDENTIAL” booking sheets and all copies of the same (other than unsealed exhibits of record) shall be returned to defendants or, at the option of defendants, destroyed. All counsel of record shall make certification of compliance herewith and shall deliver the same to counsel for the County Defendants not more than sixty (60) days after final termination of this litigation. Id. at 9.
All attorneys of record are responsible for employing reasonable measures to control, consistent with this Order, duplication of, access to, and distribution of copies of stamped “CONFIDENTIAL” documents. Id.
So Ordered. s/HBS
Hon. Hugh B. Scott United States Magistrate Judge
Dated: Buffalo, New York September 26, 2005
ATTACHED: Sworn Statement
5

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ADAM PRITCHARD, EDWARD ROBINSON, JULENNE TUCKER, both individually and on behalf of a class of others similarly situated,
Plaintiffs,
v.
THE COUNTY OF ERIE, et al., Defendants.

Hon. Hugh B. Scott 04CV534C Order

Before the Court is plaintiffs’ latest motion to compel, namely the continued deposition of certain County Defendants’1 witnesses and of defendant H. McCarthy Gipson2, as well as the deposition of two new County Defendants’ witnesses and the costs for their continued examinations (Docket No. 86). Plaintiffs subsequently moved for extensions of time to complete class certification discovery, case-in-chief discovery, and the motion return date for the class certification motion (Docket Nos. 97, 983).

1As previously described in other Order, former Sheriff Gallivan, current Sheriff Howard, Sheriff’s Department officials Huggins and Livingston, and the County of Erie.
2Defendant Gipson (and not “Gibson” as plaintiffs repeatedly refer to him as, cf. Docket No. 86) was an administrator in the Sheriff’s Department, separately represented in this action; he is now the City of Buffalo’s Police Commissioner.
3Filed due to ECF error with earlier motion.

BACKGROUND This is an action alleging that Erie County and its Sheriff’s Department conducted unconstitutional strip searches of non-felony detainees, including plaintiffs, without reasonable cause. Plaintiffs are three individuals who allegedly were so searched in 2003 and 2004, and now claim that they represent a class of similarly situated persons who were illegally searched from July 2001 to the present. Motion to Compel Presently, plaintiffs move to compel either continued examinations or to allow new examinations of Sheriff’s Department personnel, essentially as follow up to document demands (including privileged documents, see Docket Nos. 78, 79, 80, 84) (Docket No. 86, Pls. Atty. Affirm. ¶ 6), and recently produced documents (see Docket No. 86, Pls. Atty. Affirm. ¶¶ 3-5). This case has had extensive motion practice, in particular surrounding discovery4. Currently pending are the County Defendants' objection to this Court's Order to compel production of certain privileged documents, Docket No. 79, see Docket No. 78, Order. The Court established the briefing schedule for this motion, with responses due by February 28, 2006, and any reply by March 7, 2006, with the motion then deemed submitted without oral argument on March 7, 2006 (Docket No. 89). Motion for Extensions of Time The Court issued a Scheduling Order on February 23, 2005 (Docket No. 13), which set deadlines for two types of discovery. First, class certification discovery was to be completed (as
4See Docket Nos. 16, 22, 25, 40, 79, 80 (motions); see also Docket No. 70; cf. Docket Nos. 52, 53, 78, 84 (orders). Included with this motion practice was ancillary motion practice surrounding motion costs for some of the discovery motions, Docket Nos. 55-62, 65, 71.
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subsequently amended) by January 30, 2006 (Docket No. 75), and second, regular case-in-chief fact and expert discovery, to be completed by April 6, 2006 (Docket No. 13). Good cause was shown for this extended discovery schedule (Docket No. 13).
Initially, class certification discovery was to be completed by August 23, 2005, with the class certification motion filed by September 23, 2005, Docket No. 13, Scheduling Order ¶ 2. While the parties’ first round of discovery motions were pending (see Docket Nos. 16, 22, 25), the parties stipulated to extend the time for the class certification motion, to October 27, 2005 (Docket No. 27). The Court’s Order that ruled on the first round of discovery motions also extended the class certification motion to December 20, 2005, as the final extension of that deadline (Docket No. 52, Order at 26). The Court expressly stated that the December 20 extension was “generous enough to make the motion [for class certification] while not dependent upon the vagaries of document production. This, however, will be the last extension of the class certification deadline” (id.). The Court concluded that “whatever plaintiffs glean from the booking sheets they receive (and other discovery they obtain) should be sufficient to put together a motion to certify their proposed class.” (Id.)
Unfortunately, that did not turn out to be the case; further extensions were granted. The parties jointly stipulated to extend the class certification discovery and filing of the certification motion (Docket No. 75). The former was due by January 30, 2006 (the current deadline), and the latter by February 2, 2006 (Docket No. 75). Plaintiffs wrote on January 30, 2006 (see Docket No. 91, County Defs. Atty. Affirm. Ex. B), seeking a further extension of the deadline for their class certification motion. The Court granted that request, giving plaintiffs forty-five days to make their motion, or by Monday, March 20, 2006 (Docket Nos. 82, 83). The deadline to file a
3

class certification motion was further extended by one day, to Tuesday, March 21, 2006 (Docket No. 102, Order of Friday, March 17, 2006).
At first, no party following plaintiffs’ present motion to compel moved to extend the discovery for the case-in-chief deadline, although the County Defendants suggest in their response that this deadline may need to be changed in light of the extensions granted for plaintiffs’ class certification motion (see Docket No. 91, County Defs. Atty. Decl. ¶ 28) and plaintiffs in reply also indicated that they may so move (Docket No. 93, Pls. Atty. Reply Affirm. ¶ 9).
Plaintiffs now move for the extension of the class certification discovery and the class certification motion deadlines making these dates dependent upon when Judge Curtin rules on the County Defendants’ objections to the privilege Order, with class certification discovery to be completed within thirty days after Judge Curtin rules, and the class certification motion due within sixty days of that Decision & Order (Docket Nos. 97, 98). Plaintiffs also request that discovery in the case-in-chief conclude by August 6, 2006. Plaintiffs’ counsel notes defense objections to these extensions (Docket No. 97, Pls. Atty. Affirm. ¶ 2; see generally Docket No. 100, County Defs. Atty. Reply Affirm.; Docket No. 101, Gipson Atty. Affirm.), but plaintiffs make this motion to complete their discovery in light of pending discovery regarding the sought privileged documents and the depositions sought in the motion to compel (Docket No. 97, Pls. Atty. Affirm. ¶¶ 4-9).
All defendants strenuously object to granting plaintiffs additional time, given plaintiffs’ delay in conducting discovery and the impact of prior Orders concluding class certification
4

discovery (see generally Docket No. 100, County Defs. Atty. Reply Affirm.; Docket No. 101, Gipson Atty. Affirm.).
Rather than delay this decision by a lengthy briefing schedule, and given the interrelationship between the discovery motion and the motion to extend time, the motion for extension of time was considered with plaintiffs’ motion to compel and defendants were given until March 16, 2006, to respond (Docket No. 99), which they did (Docket Nos. 100, 101).
DISCUSSION I. Motion to Compel Depositions
Plaintiffs contend that this discovery is for both their class certification motion and for the case-in-chief, making their demands timely as main discovery requests. Defendants argue that plaintiffs had conducted little to no discovery related to their class certification motion in the last few months and that this Court’s Order extended the deadline for that motion and expressly did not extend the discovery for it (Docket No. 91, County Defs. Atty. Affirm. ¶¶ 7, -8, 26; Docket No. 92, Gipson Atty. Affirm. ¶¶ 4-7). Since the January 30, 2006, deadline for class certification discovery has passed, all defendants conclude that plaintiffs’ present motion is time barred (Docket No. 91, County Defs. Atty. Affirm. ¶ 26; Docket No. 92, Gipson Atty. Affirm. ¶ 7). The County Defendants contend that no one was expected to complete discovery in the case-in-chief at the deadline set, with extensions for the class certification motion to be now just one month away (Docket No. 91, County Defs. Atty. Decl. ¶ 28).
Plaintiffs contend that these depositions are tied to documents either that defendants belatedly produced or refused to produce as part of their claimed privilege (currently subject to appellate objections pending before Judge Curtin) (e.g., Docket No. 93, Pls. Atty. Reply Affirm.
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¶¶ 4-7). They argue that defendants claim that Judge Curtin’s order staying discovery relative to the privilege documents on appeal (Docket No. 84; see Docket No. 80, County Defendants’ motion seeking stay of discovery pursuant to this Court’s order, Docket No. 78, relative to the privilege log documents) was a global stay of factual discovery in this case (see Docket No. 93, Pls. Reply Affirm. ¶¶ 7, 9; cf. Docket No. 92, Gipson Atty. Affirm. ¶ 27, Ex. C). There was no general stay of discovery (either fact discovery or “post-certification discovery” as termed by defendants (cf. Docket No. 92, Gipson Atty. Affirm. ¶ 31; see also Docket No. 91, County Defs. Atty. Affirm. ¶ 29 (arguing that fact discovery should only occur after decision on a class certification motion)), or class certification or “pre-certification” discovery) issued by the Court5.
The Court, when it issued the initial Scheduling Order, noted that good cause existed for the extended discovery schedule imposed in that Order and declared that further extensions of that generous schedule would not be granted even for good cause shown (Docket No. 13, Order of Feb. 23, 2005, at 1, 2). Note, plaintiffs are represented by four out of town law firms plus local counsel; defendants are ably represented by some of the larger firms in this city, with separate counsel for one defendant. The discovery required for the case-in-chief could have been completed within the deadline set (even if the parties show good cause for an extension), in part because much of it was produced in response to the class certification issue. But, as previously noted, discovery has been dragged out and contentious.
5The Court in setting the Scheduling Order in this case did not distinguish between precertification and post-certification discovery nor did it contemplate that the parties would engage exclusively in class certification discovery or not conduct other discovery (whether or not plaintiffs move successfully for class certification).
6

A. Compel Continued Deposition Plaintiffs seek to continue the examinations of defendants Gipson, Livingston6, and Howard, and Glenn Isch (or Ishe, as identified by plaintiffs, see Docket No. 86, Pls. Atty. Affirm. ¶ 8), a lieutenant in the Sheriff’s Department. Defendants argue that the original class certification schedule closed discovery days after plaintiffs sought to resume these examinations. Plaintiffs reply that these depositions were held off while parties negotiated a possible settlement (Docket No. 97, Pls. Atty. Affirm. ¶ 8). The Court originally did not extend the discovery deadline relative to plaintiffs’ class certification motion. But plaintiffs request for additional time for the class certification motion (see Docket No. 91, County Defs. Atty. Affirm. Ex. B) was based upon pending discovery not being available to include in their motion (Docket No. 93, Pls. Atty. Reply Affirm. ¶ 8). Plaintiffs’ discovery here also goes to the case-in-chief, which concluded in April 2006. The original Scheduling Order anticipated overlapping discovery for the case-in-chief and for class certification. But, given this Order’s extension of both class certification and main discovery, defendants’ arguments about timeliness is moot and plaintiffs’ motion is granted. Defendants argue that plaintiffs were dilatory in seeking to conclude these depositions (see Docket No. 91, County Defs. Atty. Affirm. ¶¶ 19- 21, 26). Plaintiffs countered that defendants revealed documents belatedly that lead to this renewed interest in questioning the parties and witnesses (Docket No. 93, Pls. Atty. Reply Affirm. ¶¶ 4-8). This argument does
6Plaintiffs now withdraw their request to continue defendant Livingston’s examination, Docket No. 93, Pls. Atty. Reply Affirm. ¶ 12 n.2, but reserved the right to reopen this request following the Court’s decision on defendants’ objections to the order compelling production of the privilege log documents.
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suggest that the time to conduct these examinations should be brief. Therefore, within the time for completing discovery set forth in this Order, plaintiffs have forty-five (45) days to conduct these examinations. Neither party should wait until the last day to commence these examinations either to preclude them or to drag out this part of the discovery process.
B. Compel New Deposition Plaintiffs served deposition notices for Jeffrey Hartman, Robert Huggins, and Gerry Kowalsczyk, Sheriff’s Department employees (Docket No. 86, Pls. Atty. Affirm. ¶ 8). Defendants object that plaintiffs had not identified these witnesses before, and now do so out of time under the earlier schedule for class certification discovery. As stated above for the continued depositions, with this Order’s new deadlines for completing discovery (see infra), plaintiffs’ notices of these new witnesses are timely. Plaintiffs’ motion as to these witnesses are granted. II. Costs for Continued Depositions Plaintiffs also seek the expenses associated with continuing the examinations of the County Defendants’ witnesses (such as court reporters, travel costs and other reasonable expenses) (Docket No. 86, Pls. Atty. Affirm. first ¶ 13). Plaintiffs cite no authority for such relief, save defendants’ agreement to pay these expenses following the late disclosure of three email documents. Rule 37(a)(4)(A) allows a successful movant to recover its motion expenses when it has to make a motion to compel; there is no provision for awarding the movant what would be its costs in continuing the deposition. But the parties stipulated to have defendants pay the costs of the continued examinations based upon defendants’ belated production of documents. The County Defendants expressed their willingness to “incur reasonable costs with
8

any additional testimony related to Isch, Howard or [Gipson] as they relate to” three documents lately produced to plaintiffs (Docket No. 86, Pls. Atty. Affirm. Ex. SIX, letter of Domalgalski to pls. counsel, Nov. 14, 2005, at 2). If the parties wish to agree to this cost shifting (to avoid, for example, a further motion for sanctions for failure to produce the belated documents) that is up to them. But absent such a written stipulation, cf. Fed. R. Civ. P. 29, the Court cannot impose those expenses; plaintiffs’ motion on this point is denied. III. Extensions of Time
When the Court extended time for the class certification motion and agreed to the parties’ earlier stipulation regarding that schedule, it was anticipated that the parties would complete class-based discovery and plaintiffs then would proceed to make their motion. Particularly, the February 2, 2006, Order (Docket No. 82, see Docket No. 83) presumed that discovery related to the class certification motion was near completion and did not require the time for full blown case-in-chief discovery. But that Order did not expressly reject plaintiffs’ request to extend class certification discovery.
The discovery issues arising in a class certification motion, see Fed. R. Civ. P. 23(a), (b), on the commonality of claims, the typicality of claims of class members and by the representative class members, numerosity of class members, the common action of defendants against plaintiff class members, common questions of law or fact predominate, should have been addressed by the documents and other evidence produced. The outstanding items, the privilege log documents and the further depositions at issue in the present motion to compel and the objections before Judge Curtin, certainly could add to the motion to certify the class but were not essential. The
9

class certification motion is determining the existence of a class as of the date that motion is considered, a snapshot of whether a class exists and, if so, its composition.
The Court possesses the authority to decertify or modify a class that proves unmanageable, see In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 321 (3d Cir. 1998); In re Safety Components, Inc. Secs. Litig., 166 F. Supp. 2d 72, 91 (D.N.J. 2001), hence further discovered material may change the nature, composition or even the existence of a class. Plaintiffs, as parties invoking Rule 23, have the burden of showing that all class prerequisites have been met. See 7A Charles A.. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1759, at 122 (Civil 3d ed. 2005); W.D.N.Y. Loc. Civ. R. 23(f); see also Marriott v. Montgomery County, 227 F.R.D. 159, 171 (N.D.N.Y. 2005), aff’d by summary order, No. 05-1590, 2005 U.S. App. LEXIS 25428 (2d Cir. Nov. 22, 2005); McBean v. New York City, 228 F.R.D. 487, 491-92 (S.D.N.Y. 2005), but the factual allegations in the Complaint (including the class allegations) are treated like a motion to dismiss and deemed to be true, see Maneely v. City of Newburgh, 208 F.R.D. 69, 72 (S.D.N.Y. 2002). “However, plaintiff is not required to make an extensive evidentiary showing.” Marriott, supra, 227 F.R.D. at 171; Verdow v. Sutkowy, 209 F.R.D. 309, 311 (N.D.N.Y. 2002). Further, as noted by the Northern District of New York court in Marriott, “courts are implored to construe liberally the Rule 23 requirements,” Marriott, supra, 227 F.R.D. at 171, citing Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 563 (2d Cir. 1968); Verdow, supra, 209 F.R.D. at 311. Thus, the February 2, 2006, Scheduling Order on this point (Docket Nos. 82, 83) intended plaintiffs to go forward with what they have to establish as the existence and scope of their purported class and not upon every conceivable piece of evidence available to support their class claims.
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Defendants vigorously argue that plaintiffs time to conduct discovery had run, that this Court’s scheduling Orders were law of the case on plaintiffs repeated request to extend class certification discovery (e.g., Docket No. 101, Gipson Atty. Affirm. ¶¶ 3, 7, 20). They express the frustration in having plaintiffs move forward and make their class certification motion and making motions to extend at the eleventh hour (see Docket No. 100, County Defs. Atty. Reply Affirm. ¶¶ 12, 11). They point out that plaintiffs had conducted no class-based discovery from November 2005 to January 30, 2006 (id. ¶ 14; Docket No. 101, Gipson Atty. Affirm. ¶¶ 11, 21). The County Defendants also note that plaintiffs have not supplemented their initial Rule 26(a) disclosure until very recently with their present motions (Docket No. 100, County Defs. Atty. Affirm. ¶¶ 16-20).
Despite the brief era of good feelings and cooperation following the possibility of discovery sanctions upon counsel in the earlier round of discovery and disclosure motions, see Docket No. 58, new disputes have arisen or have been revived (including the present motion and the privilege documents objections and the County Defendants’ objection to plaintiffs’ failure to timely supplement their initial disclosure) that have delayed the anticipated speedy completion of discovery (both for the class certification and the case in general). The parties will require time once this Court decides these outstanding matters before a motion for class certification or casein-chief fact discovery can be concluded. Plaintiffs have moved for extensions of time to push back discovery and the motion deadline in light of these disputes (Docket No. 97). Plaintiffs here are not “cavalierly disregard[ing]” this Court’s Scheduling Orders, see Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (cf. Docket No. 101, Gipson Atty.
11

Affirm. ¶ 7), rather they seek extensions of those Orders at the eleventh hour, despite indications that no extensions will be given.
The Court must balance upholding its Orders and the schedule they impose with doing justice to the parties, especially with putative class members. Plaintiffs should not be rewarded by their counsel apparently sitting on their hands for months at a time not conducting necessary discovery or apparently readying class certification motion papers. But the reasons stated for the extension (Docket No. 97, Pls. Atty. Affirm. ¶¶ 5-7) go to the discovery issues that are the subject of plaintiffs’ motion to compel, as well as defendants’ pending objections. Rather than have claims potentially be dismissed as untimely sought and not reaching the underlying merits due to pending discovery disputes7, an extension of time will be granted to (1) complete class certification discovery, in light of the disputes raised in this motion and in the privilege log objections; (2) complete discovery in the case-in-chief; (3) set the dates for motion for class certification; and (4) for dispositive motions. Plaintiffs’ requested dates (cf. Docket No. 97), however, will not be adopted. Rather than tie the dates to when Judge Curtin decides the outstanding objections as plaintiffs seek (Docket No. 97, Notice of Motion ¶¶ 1-2), definitive extension dates will be set, which are more generous that what plaintiffs sought.
Class certification discovery shall be completed by May 1, 2006. Class certification motion shall be filed on or before July 10, 2006. All discovery (fact and expert in the case-inchief) shall be completed by September 12, 2006; plaintiffs shall identify any experts by
7If plaintiffs’ motion for extension of time were denied and they failed to file a timely class certification motion by March 20, 2006, they could appeal that denial of class certification, see Fed. R. Civ. P. 23(f), and possibly further delay reaching the merits as to the individual plaintiffs if this Court or the Second Circuit were to stay this action pending that appeal, see id.
12

July 17, 2006, defendants shall identify their experts by August 15, 2006, and all expert discovery shall conclude by September 1, 2006. Thus, ample time is given for completion of both classes of discovery (more than plaintiffs sought for case-in-chief discovery) as well as to file a class certification motion. The Court expects all discovery to be conducted simultaneously. Dispositive motions shall be filed on or before December 27, 2006. Enough time has been provided here to complete discovery and whatever motion practice is necessary to reach the merits of plaintiffs’ individual and class claims. As a result, and as previously stated, there shall be NO FURTHER EXTENSION OF THESE DEADLINES. Obviously, if the parties can perform these activities before these deadlines (such as filing the class certification motion on the present state of the discovery) then so much the better to reaching the merits expeditiously. This Order is not an invitation for parties to delay further or wait until the eve of deadlines to act or seek yet another delay on the now false assumption (based upon past practice) that, if sought, more time will be given by stipulation or Order. Given the warning in this Order, the Court will expect going forward timely completion of discovery and motion practice and ultimately progressing this case to its merits (see Docket No. 52, Order of Sept. 26, 2005, at 35, concluding that “this case needs to get to its merits”).
CONCLUSION For the reasons stated above, plaintiffs’ motion to compel (Docket No. 86) is granted, as conditioned by the terms of this Order. Plaintiffs’ motion for extensions of time (Docket Nos. 97, 98) is granted in part, denied in part, with the following dates so ordered. Class certification discovery shall be completed by May 1, 2006. Class certification motion shall be filed on or before July 10, 2006. All discovery (fact and expert in the case-in-chief) shall be
13

completed by September 12, 2006; plaintiffs shall identify any experts by July 17, 2006, defendants shall identify their experts by August 15, 2006, and all expert discovery shall conclude by September 1, 2006. Dispositive motions shall be filed on or before December 27, 2006. All previous Scheduling Order deadlines not amended by this Order remain in full effect. NO FURTHER EXTENSION OF THESE DEADLINES SHALL BE GRANTED. Plaintiffs’ motion for recovery of their costs for continuing the examinations of certain parties and witnesses is denied.
So Ordered.
/s/ Hugh B. Scott
Hon. Hugh B. Scott United States Magistrate Judge Dated: Buffalo, New York March 20, 2006
14

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ADAM PRITCHARD, et al.,
Plaintiffs,
v.
THE COUNTY OF ERIE, et al., Defendants.

Hon. Hugh B. Scott 04CV534C Order

This is a follow up to a recent series of discovery motions pending before the Court. First, County Defendants1 moved for a protective Order, pursuant to Fed. R. Civ. P. 26(c), against disclosure of documents “relating to non-strip search related incidents including assaults and attempted suicides and unrelated non-strip search e-mail/documents” (Docket No. 116, Notice of Motion at 1); second, plaintiffs moved to compel to produce all documents designated by defendants as “felony” documents, and to allow plaintiffs to inspect the original documents responsive to their demands (Docket No. 120).
Following a truncated briefing schedule (Docket Nos. 117, 121), on June 26, 2006, this Court ordered the County defendants to produce an “objections” log, describing the documents they declined to produce to plaintiffs and the reasons for that declination, within twenty (20)
1The “County Defendants” consist of Erie County, its former and present Sheriffs and named Sheriff’s Department officials who were allegedly responsible for the Erie County Holding Center and the Erie County Correctional Facility, all of the defendants in this action save defendant Gipson (who is separately represented).

days; plaintiffs were to respond to the contents of this log within ten (10) business days (Docket No. 129). The County Defendants’ motion for a protective order (Docket No. 116) was denied in part, granted in part and plaintiffs’ cross-motion (Docket No. 120) was granted in part (Docket No. 129). Familiarity with this Order is presumed.
The County Defendants produced their objections log (Docket No. 134) describing about 500 documents. Plaintiffs then filed an attorney’s affirmation (Docket No. 136) which concedes that a vast majority of the documents identified are not relevant to this action (id. ¶ 1), but sought in camera inspection of four sets of e-mails.
DISCUSSION Currently at issue are four sets of e-mails plaintiffs wish the Court to inspect in camera for possible production. As identified in the County Defendants’ objection log, EC-C 1188 and EC-C 1211-1215 involve sexual harassment training by upper management of the Sheriff’s Department. Plaintiffs seek these documents to show the level of enforcement by the County Defendants of departmental policies, albeit a policy unrelated to strip searches. The other two documents, EC-C 1189 and EC-C 1220, are e-mail cover sheets from former Assistant County Attorney Kristin Baudo Machelor, apparently from her office e-mail address to her home e-mail address. Following review of the County Defendants’ objections log and plaintiffs’ asserted reasons for seeking these documents (Docket Nos. 134, 136), the Court declines to review these documents in camera and will now decide upon whether they should be produced.
2

I. Sexual Harassment Training E-Mails According to the County Defendants’ log, EC-C 1188 is a memorandum from or for a
meeting of Sheriff’s Department administrators regarding sexual harassment training. From the log, there is nothing indicating the implementation of the policy (or the training) and all this involves the Sheriff’s sexual harassment policy, far afield from the policy for conducting detainee searches. The documents identified as EC-C 1211 to 1215 are a string of e-mails between Sheriff’s officials and the County Attorney’s office regarding the sexual harassment policy, medical records authorization forms and HIPAA forms and compliance (Docket No. 134, County Defs. log). Defendants also assert attorney-client privilege for these documents (id.).
Plaintiffs fail to establish how documents regarding another Sheriff’s Department policy (or even its implementation) is relevant to the claims raised regarding searches of inmates and adherence (or not) to the departmental policy therefor. Nor do plaintiffs address the attorneyclient privilege asserted for EC-C 1211-15. Thus, the documents sought regarding the Sheriff’s Department sexual harassment policy, EC-C 1188, EC-C1211-1215, should not be produced. II. Machelor Transmission E-Mails
These documents appear to be e-mail transmission cover sheets sent by former Assistant County Attorney Machelor between her home and work e-mail addresses. Plaintiffs intend to use these documents to establish that Machelor used her home e-mail address as well as her office email address. (Docket No. 136, Pls. Atty. Affirm. ¶ 2.) While it is not initially clear what relevance the fact that an attorney uses her home and work e-mail addresses, it may lead to discovery of admissible evidence, cf. Fed. R. Civ. P. 26(b)(1). Absent objections by the County
3

Defendants on privilege grounds (which they have not asserted) and the fact that these covering documents do not have whatever attachments to them, they should be produced.
CONCLUSION For the reasons stated above and as previously determined (Docket No. 129), the County Defendants’ motion for a protective order (Docket No. 116) is granted in part, denied in part; namely, that defendants are to produce EC-C 1189, EC-C 1220, but may withhold EC-C 1188, EC-C1211-1215 as well as the other documents plaintiffs now concede are beyond the scope of this litigation. As a result, plaintiffs’ motion to compel (Docket No. 120) is granted in part in so far an the “objections” log will be created, but denied in part in so far as not obtaining the withheld documents. So Ordered.
/s/ Hugh B. Scott
Honorable Hugh B. Scott United States Magistrate Judge Dated: Buffalo, New York August 9, 2006
4

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

ADAM PRITCHARD, et al.,

Plaintiffs,

-vs-

THE COUNTY OF ERIE, et al., Defendants.

DECISION AND ORDER 04-CV-534-A

In accordance with this Court’s order dated July 10, 2009, plaintiffs filed a renewed motion for class certification (Item 235). Defendants responded, and filed a cross-motion (Item 247) to strike certain matters from plaintiffs’ certification motion papers. The Court heard oral argument of these motions on March 24, 2010. For the reasons stated, plaintiffs’ motion for class certification is granted, and defendants’ cross-motion to strike is granted.
BACKGROUND This action was filed in July 2004 by proposed representative plaintiffs Adam Pritchard and Edward Robinson1 seeking injunctive relief, money damages and attorneys' fees pursuant to 42 U.S.C. § 1983, individually and on behalf of a putative class of
1 Julenne Tucker was also named as a class representative. However, plaintiff’s counsel has moved to discontinue the claims of plaintiff Tucker and to withdraw as Mr. Tucker’s counsel. Because the certification motion seeks representative status on behalf of only Adam Pritchard and Edward Robinson, and in the absence of any showing with regard to Mr. Tucker’s adequacy as a class representative or any objection to this motion by defendants, the motion to discontinue Mr. Tucker as class representative is now granted, as is counsel’s request to withdraw from his representation of Mr. Tucker on an individual basis.

post-arraignment pre-trial detainees charged with misdemeanors or other minor crimes
who entered the Erie County Holding Center in downtown Buffalo (ECHC) or the Erie
County Correctional Facility in Alden (ECCF) between July 22, 2001 and May 1, 2004.
Plaintiffs allege that, beginning in 2001, the Sheriff's Department implemented a policy to
conduct an invasive strip search of every such detainee at the time they changed from
street clothes to a prison uniform (a procedure called "change-out"), without regard for the
severity of the offense alleged and without individualized reasonable suspicion of
possession of weapons or contraband, in violation of the Fourth Amendment. Named as
defendants are the County of Erie; Patrick Gallivan, former Erie County Sheriff; Timothy
Howard, former Undersheriff; Donald Livingston, Superintendent of the ECCF; Robert
Huggins, former Deputy Superintendent of the ECCF; and H. McCarthy Gipson, former
Superintendent of the ECHC.
The County, along with individual defendants Gallivan, Howard, Livingston, and
Huggins (referred to collectively as the “County defendants”), filed an answer generally
denying the existence of a policy to conduct strip searches without regard to individualized
suspicion or the offense alleged, and asserting several affirmative defenses. Defendant
Gipson filed a separate answer with the same or substantially similar denials and defenses.
By their renewed motion, plaintiffs seek certification of the following class:
All persons who have been placed into the custody of the Erie County Correctional Facility and/or the Erie County Holding Center after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Erie County Correctional Facility and/or the Erie County Holding Center pursuant to the policy, custom and practice of the Erie County Sheriff's Department and the County of Erie. The class period commences on July 22, 2001 and extends until May 1, 2004. Specifically excluded from the class are Defendants and any and all of their
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respective affiliates, legal representatives, heirs, successors, employees or assignees. (Item 239, pp. 1-2). Plaintiffs request that the Court certify this action as a money damages class action under Rule 23(b)(3). In the alternative, plaintiffs seek partial certification under Rule 23(c)(4). Defendants respond that a class cannot be certified in this case because plaintiffs have failed to come forward with proof that the County's facially valid search policy was unconstitutional. Defendants also argue that the proposed representative plaintiffs are inadequate and atypical of the proposed class because Mr. Pritchard (the only proposed class representative searched at the ECCF) was a parole violator, which carries a different legal status than an arrestee on a misdemeanor or other minor crime, and that Mr. Robinson (the only proposed representative searched at the ECHC) was searched outside the class period (see Item 245).2 The County defendants have also filed a cross-motion (Item 247) seeking an order striking certain exhibits and unsupported allegations from the plaintiffs' motion papers. Each motion is discussed in turn.
2Defendant Gipson adopts the factual statements, arguments, and other matters put forth by the County defendants (see Item 250). It is noted that defendants did not seek Court approval prior to filing their 40-page responding m em orandum of law, well in excess of the 25-page lim it of Local Rule 7.1(f).
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DISCUSSION
I. Motion for Class Certification
A. Applicable Law
The certification of class actions is governed by Rule 23, which provides in pertinent
part:
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
* * *
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently 5 adjudicating the controversy. The matters pertinent to these findings include:
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(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.
* * *
(4) Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues.
Fed. R. Civ. P. 23.
Most courts that have addressed class certification in the context of prison strip
searches have proceeded under Rule 23(b)(3). See, e.g., In re Nassau County Strip
Search Cases, 461 F.3d 219, 225 (2d Cir. 2006); Williams v. County of Niagara, 2008 WL
4501918 (Sept. 29, 2008); Mitchell v. County of Clinton, 2007 WL 1988716 (N.D.N.Y. July
5, 2007).
To achieve class certification pursuant to Rule 23(b)(3), plaintiffs must (1) satisfy the
four requirements of Rule 23(a) (numerosity, typicality, commonality, and adequacy of
representation); (2) demonstrate that common "questions of law or fact" predominate over
"any questions affecting only individual members;" and (3) establish that the class action
mechanism is "superior to other available methods for the fair and efficient adjudication of
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the controversy." In re Nassau County Strip Search Cases, 461 F.3d at 225 (internal quotations and citation omitted) (reversing district court's denial of class certification motion in jail strip search case).
B. Numerosity The numerosity requirement of Rule 23(a)(1) is satisfied by a showing that, due to the number of potential class members, joinder of individual members as named plaintiffs would be impracticable. See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). In this case, the numerosity of plaintiff's proposed class is supported by defendants’ production of booking records indicating that approximately 45,000 individuals were admitted to the ECHC or ECCF during the class period from July 2001 to May 2004. Plaintiffs' counsel reasonably estimates that the class size is, at a minimum 30,000 individuals. Accepting as true the allegation that these detainees were all subjected to the strip searches during the change-out procedure upon their admission, this class size is more than adequate to meet the numerosity requirement. See, e.g., Mitchell, 2007 WL 1988716, at *2 (numerosity established in strip search class action where class would number "well into the hundreds, very likely over a thousand"); Williams v. County of Niagara, 2008 WL 4501918, at *3 (W.D.N.Y. September 29, 2008) (numerosity established in strip search class action where plaintiffs estimated class size to be over 8,000 individuals).
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C. Commonality and Typicality Under Rule 23(a)(2), plaintiffs must show commonality, that is, that the action raises "questions of law or fact common to the class." Under 23(a)(3), plaintiffs must also show that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” As explained by the Second Circuit, these requirements “tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3).” Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (citing General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13 (1982)). The commonality requirement is met if plaintiffs' claims share a common question of law or of fact. Id.; see also In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 166-67 (2d Cir. 1987). The typicality requirement “is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability.” In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992). In this case, there is ample proof in the documents and testimony presented to the Court to support the claim that a significant number of detainees admitted to the ECHC and ECCF during the class period were subjected to a strip search at change-out. However, the proof also indicates that the two facilities had different procedures. As to ECCF, plaintiff’s allege that a written policy existed directing strip searches for all detainees, including those charges with minor crimes. In contrast, plaintiff’s allege that ECHC had a uniform practice (as opposed to a written policy) of conducting strip searches for all detainees, including those charged with minor crimes. In light of the existence of two different strip search procedures conducted at different facilities, the Court finds that it is
-7-

appropriate to divide each group into a different subclass, as defined below. Dividing the groups into subclasses will enhance the commonality and typicality requirements as to each subclass. As divided, the claims of each subclass raise factual and legal questions that are common to the class, requiring the same or similar arguments to prosecute their claims as would be made by members of the proposed class. Accordingly, the commonality and typicality requirements are met.
E. Adequacy of Representation Rule 23(a)(4) requires that the class representatives “fairly and adequately protect the interests of the class.” Adequate representation depends on two factors: (a) the plaintiffs' attorney must be qualified, experienced and generally able to conduct the proposed litigation; and (b) the class members must not have interests antagonistic to one another. In re Joint Eastern and Southern Dist. Asbestos Litigation, 78 F.3d 764, 778 (2d. Cir. 1996). With regard to the first factor, there is no question that plaintiffs’ counsel have extensive experience in this type of complex class litigation, requiring more than a working knowledge of the applicable law. See, e.g., Williams, 2008 WL 4501918, at * 4; Mitchell, 2007 WL 1988716, at *6; see also Kelsey v. County of Schoharie, 2007 WL 603406 (N.D.N.Y. February 21, 2007), rev’d, 567 F.3d 54 (2d Cir. May 22, 2009) (process for exchange of personal clothing for prison clothing under observation of corrections officer in the manner described by plaintiffs does not fall within prohibitions established by Circuit precedents relating to strip searches). Counsel have also adequately demonstrated that they have done a significant amount of work in identifying and investigating potential
-8-

claims, and there can be no question that they have already committed substantial resources to representing the class. See, e.g., In re County of Erie (Erie I), 473 F.3d 413 (2d Cir. 2007); In re County of Erie (Erie II), 546 F.3d 222 (2d Cir. 2008). Rule 23(g)(1) requires the Court to consider the following factors in appointing class counsel: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. The Court finds that the requirements of Rule 23(g)(1) have been met and counsel is competent to adequately litigate this matter on behalf of the class.
With regard to the adequacy of the class member-representatives, there is no indication that the class members would have interests antagonistic to one another. Defendants contend that Pritchard — the only proposed class representative searched at the ECCF — is inadequate because his search occurred following his arrest for a parole violation. Defendants contend that parole is a unique legal custodial status not carrying the same constitutional protections against unreasonable searches enjoyed by the rest of the proposed class. There is ample precedent from courts within the Second Circuit, including this Court, indicating that a violation of parole status does not in and of itself provide justification for a strip search upon admission to a correctional facility. Cf. Marriott v. County of Montgomery, 426 F. Supp.2d 1 (N.D.N.Y. 2006) (awarding summary judgment to class of pretrial detainees, including parole violators, who were subjected to blanket strip search policy); Dodge v. County of Orange, 209 F.R.D. 65, 77 (S.D.N.Y. 2002) (finding no basis to conclude that admission to correctional facility upon violation of probation or parole
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in and of itself provides individualized reasonable suspicion for strip search); Black v. Amico, 387 F. Supp. 88, 90-92 (W.D.N.Y. 1974) (parole status of visitor to ECHC did not provide justification for strip search). In addition, in a similar class action brought by pre-trial detainees challenging strip search policies and practices at the Niagara County Jail, this Court recently certified a class which included individuals admitted to the jail after being charged with violations of the conditions of parole or probation. See Williams, 2008 WL 4501918, at *5. Accordingly, defendants’ challenge to the adequacy of plaintiff Pritchard is denied.
With respect to Robinson — the only proposed representative searched at the ECHC — defendants contend that the search took place on May 15, 2004, outside the proposed class period from July 22, 2001 through May 1, 2004. Contrary to the defendants’ contention, however, Robinson has testified that he was strip searched at ECHC on at least two occasions during the class period - once on February 17, 2002 and a second time on July 5, 2002. He further asserts that both of those searches occurred after being arrested on misdemeanor charges. In light of that testimony, the Court finds defendants’ challenge to the adequacy of plaintiff Robinson also without merit.
F. Predominance and Superior Method Having found that plaintiffs have met the prerequisites of Rule 23(a), the court must next determine whether plaintiffs have adequately demonstrated that common questions predominate over questions affecting individual plaintiffs, and that a class action is the best method of adjudicating this case. To meet the predominance requirement, plaintiffs must show that the issues in the action that are subject to generalized proof, and applicable to
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the class as a whole, predominate over those issues that are subject only to individualized proof. See In re Visa Check/Master Money Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001).
The Court has little difficulty concluding that the questions raised by plaintiffs regarding the existence of the alleged strip search policies at ECCF and ECHC, the constitutionality of those practices and policies, and the ultimate liability of the County and the individual defendants, are common to all potential class members and are subject to generalized, class-wide proof. These issues predominate over those issues that are subject to individualized proof. See In re Nassau County Strip Search Cases, 461 F.3d at 228. As noted by the Second Circuit in that case, “when plaintiffs are allegedly aggrieved by a single policy of defendants, such as the blanket policy at issue here, the case presents precisely the type of situation for which the class action device is suited since many nearly identical litigations can be adjudicated in unison.” Id. (internal quotations and citation omitted). The division of the proposed class into two subclasses heightens the predominance as to issues common to the subclass members. See Williams, 2008 WL4501918, at * 3-4.
Moreover, as in Williams and Mitchell, the circumstances of this case make it highly unlikely that many members of the class would have the resources to pursue their claims individually in separate actions, or that separate actions would result in better outcomes for the claimants. “In light of the nature of the issues and the flexibility accorded to courts in handling class actions, it is unlikely that the management of this case as a class action will present inordinate difficulties.” Mitchell, 2007 WL 1988716 at *5.
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Accordingly, the Court finds that common questions predominate over questions affecting individual plaintiffs, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
G. Rule 23(c)(4) Having determined to certify the class under Rule 23(b)(3), the Court need not consider whether partial certification under Rule 23(c)(4) would also be appropriate. In re Nassau County Strip Search Cases, 461 F.3d at 230 n. 4.
H. Subclasses Defined Having determined that all of the requirements for class certification have been met, the Court hereby certifies the class as follows: All persons who have been placed into the custody of the Erie County Correctional Facility and/or the Erie County Holding Center after being charged with misdemeanors, violations, violations of probation or parole, traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Erie County Correctional Facility and/or the Erie County Holding Center pursuant to the policy, custom and practice of the Erie County Sheriff's Department and the County of Erie. The class period commences on July 22, 2001 and extends until May 1, 2004. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees;
Subclass A All class members who were placed in the custody of the Erie County Holding Center during the class period;
Subclass B
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All class members who were placed in the Erie County Correctional Facility during the class period.
II. Motion to Strike Defendants have also filed a motion to strike certain matters contained in plaintiffs’
submissions offered in support of the renewed motion for class certification. Specifically defendants request that the Court issue an order striking from the record Exhibit Y attached to Item 236 (Keach Affidavit In Support of Renewed Motion), which is a memorandum of law from plaintiffs’ prior motion to compel. The prior motion sought production of privileged e-mail communications which the Second Circuit has since held to be protected by the attorney-client privilege and not subject to any waiver. See Erie I and Erie II, supra. Defendants also request that the Court strike from plaintiffs’ memorandum of law in support of the renewed motion statements suggesting that Sheriff's Department Officer Lisa Jenkins coached deputies to testify at their depositions that no strip searches were being conducted at the ECHC.
Notwithstanding ample opportunity to do so, plaintiffs have not responded to defendants’ motion to strike. Accordingly, the motion is granted.
CONCLUSION For the reasons stated herein, the Court grants plaintiffs' renewed motion for class certification (Item 235), and it is therefore ORDERED that the following class is certified pursuant to Fed. R. Civ. P. 23(b)(3): All persons who have been placed into the custody of the Erie County Correctional Facility and/or the Erie County Holding Center after being charged with misdemeanors, violations, violations of probation or parole,
-13-

traffic infractions, civil commitments or other minor crimes and were strip searched upon their entry into the Erie County Correctional Facility and/or the Erie County Holding Center pursuant to the policy, custom and practice of the Erie County Sheriff's Department and the County of Erie. The class period commences on July 22, 2001 and extends until May 1, 2004. Specifically excluded from the class are Defendants and any and all of their respective affiliates, legal representatives, heirs, successors, employees or assignees; Subclass A All class members who were placed in the custody of the Erie County Holding Center during the class period; Subclass B All class members who were placed in the Erie County Correctional Facility during the class period;
and it is further ORDERED that plaintiffs' attorneys of record are appointed as class counsel
pursuant to Rule 23(g); and it is further ORDERED that plaintiffs shall have 60 days from the date of this Order to identify
and move for the addition of another representative of the class members who were searched upon admission to the Erie County Correctional Facility, in particular, one who was not on parole at the time; and it is further
ORDERED that defendants’ unopposed cross-motion (Item 247) to strike certain portions of the submissions made by plaintiffs is granted. The Clerk of the Court is directed to take the steps necessary to remove from the record Exhibit Y attached to Item 236, and to remove from the record Item 249 (Memorandum of Law in Support of Plaintiffs’ Renewed Motion for Class Certification) in its entirety, and plaintiffs are directed to re-
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submit Item 249 deleting any reference to Sheriff's Department Officer Lisa Jenkins; and it is further
ORDERED that this case is referred back to Magistrate Judge Hugh B. Scott for all pretrial proceedings pursuant to 28 U.S.C. Section 636(b)(1)(A) and (B), all pre-trial matters in this case are referred to the above-named United States Magistrate Judge, including but not limited to: (1) conduct of a scheduling conference and entry of a scheduling order pursuant to Fed. R. Civ. P. 16, (2) hearing and disposition of all non-dispositive motions or applications, (3) supervision of discovery, and (4) supervision of all procedural matters involving the aforementioned or involving the preparation of the case or any matter therein for consideration by the District Judge. The Magistrate Judge shall also hear and report upon dispositive motions for the consideration of the District Judge pursuant to 28 U.S.C. Section 636(b)(1)(B) and (C).

SO ORDERED. DATED: June 11, 2010

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE

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 Pritchard v. County of Erie, Not Reported in F.Supp.2d (2006)

KeyCite Red Flag - Severe Negative Treatment Objections Overruled by Pritchard v. County of Erie, W.D.N.Y., April 17, 2006
2006 WL 3858475 Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Adam PRITCHARD, et al., Plaintiffs, v.
The COUNTY OF ERIE, et al., Defendants.
No. 04CV534C. | Jan. 4, 2006.
Attorneys and Law Firms
Bruce E. Menken, Beranbaum Menken Ben-Asher & Bierman LLP, Alexander E. Barnett, The Mason Law Firm, PC, New York, NY, Charles Joseph Laduca, Cuneo Gilbert & Laduca, LLP, Washington, DC, David G. Jay, Buffalo, NY, Elmer R. Keach, III, Law Offices of Elmer Robert Keach III, Amsterdam, NY, for Plaintiffs.
Frank T. Gaglione, Frank T. Gaglione, P.C., Amherst, NY, Kristin Klein Wheaton, Assistant County Attorney, James Paul Domagalski, Hiscock & Barclay LLP, Thomas C. D’Agostino, Mattar, D’Agostino & Gottlieb, LLP, Buffalo, NY, for Defendants.
Opinion
Order
HUGH B. SCOTT, United States Magistrate Judge.
*1 Before the Court is a follow up from plaintiffs’ omnibus motion (Docket No. 25), including a motion seeking in camera inspection of documents listed in the County Defendants’1 privilege log (see Docket No. 52, Order, at 15; Docket No. 25, Pls. Atty. Aff. Exs. M, N; Docket No. 30, County Defs. Atty. Affirm. Ex. D). The Court previously ordered (Docket No. 52, familiarity with which is presumed) that the County Defendants produce for in camera inspection documents identified in their privilege log (id. at 21-22). The County Defendants produced for in camera inspection the documents identified in the privilege log on December 21, 2005, with in camera declarations from the Assistant County Attorney who is prosecuting this case (Kristin Klein Wheaton) and the former Assistant County Attorney who generated many of the privileged documents (Kristin Baudo Machelor). The documents consist of e-mails and attachments from Machelor to individual County

Defendants and other Sheriff’s Department officials and similar communications from those officials to her. The County Defendants argue that these documents are privileged as attorney-client communications advising the client Erie County Sheriff and the Sheriff’s Department. At least two documents (EC-C-00221, 00250) defendants claim attorney work product in anticipation of litigation privilege as well as attorney-client privilege, the first from Machelor and the second to Wheaton from a Sheriff’s Department official. Machelor emphatically denies having any authority to make policy for the Sheriff’s Department (Machelor In Camera Decl. ¶ 5).
DISCUSSION
The party asserting the attorney-client privilege bears the burden of proving that the privilege applies. Mobil Oil Corp. v. Department of Energy, 102 F.R.D. 1, 9 (N.D.N.Y.1983).
Following in camera inspection, as the County Defendants alleged initially in response to plaintiffs’ motion (cf. Docket No. 52, Order at 21), many of the documents listed in the privilege log produced to the Court either seek legal advice or is legal advice or opinions rendered by legal counsel or are work product. Some (involving Wheaton, EC-C-00229-50) directly involve requesting representation in this action or investigation of the facts in this case. As such, the attorney-client privilege applies to these documents. Therefore, following this in camera inspection, plaintiffs’ motion (as implied as part of plaintiffs’ omnibus motion (Docket No. 25)) seeking production of these privileged documents is denied.
But a number of other documents, either written by Machelor or sent to her, go beyond rendering “legal analysis” as characterized in the privilege log and in her in camera declaration. In some of these documents, Machelor proposes changes to existing policy to make it constitutional, including drafting of policy regulations (e. g., EC-C-00161). One e-mail from defendant Gallivan states that the policy was revised in consultation with legal counsel (EC-C-00108). A later e-mail from Machelor advises Gallivan to not wait for his chiefs to act but to implement changes in the policy as soon as possible (EC-C-00119). What is more troubling are the correspondence from counsel following enactment of the new policy. There, Machelor is advocating to administrative and executive officials within the Sheriff’s Department to take steps to implement the new policy (such as acquiring equipment, training personnel) (e.g., EC-C-00126, 00206), inspecting one facility and commenting upon its compliance with the new policy
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Pritchard v. County of Erie, Not Reported in F.Supp.2d (2006)

(e.g., EC-C-00204), and urging Sheriff’s Department officials to implement changes as soon as possible (e.g., EC-C-00126).
*2 In this Court’s earlier Order (Docket No. 52, at 22), and as noted during oral argument of plaintiffs’ omnibus motion, the Court raised the concern about the dual role of the County Attorney as policy advisor and legal advisor/advocate. This distinction may be clearer in the private sector context, where courts have held that an in-house counsel with business decision making authority (for example, a vice-president and general counsel) had the added burden of establishing that her advice to her corporate client was legal advice to enjoy attorney-client privilege, rather than business advice which was beyond the privilege. See Ames v. Black Entertainment Television, No. 98 Civ. 0226, 1998 U.S. Dist. LEXIS 18053, at *21-22, *23 (S.D.N.Y. Nov. 18, 1998) (denying motion to compel where privilege was asserted for general counsel’s testimony over legal advice, in investigating an employee); see also Mobil, supra, 103 F.R.D. at 10 (unclear if defendant agency attorney was acting as an attorney for particular document, denying attorney-client privilege).
From review of the in camera documents, that dual role here becomes readily apparent and the distinction between the legal (and privileged) from the policy making (and not privileged) roles have become blurred. Despite her denial, Machelor’s drafting and subsequent oversight of implementation of the new strip search policy ventured beyond merely rendering legal advice and analysis into

the realm of policy making and administration. As a result, the following in camera documents are not subject to the asserted attorney-client privilege and should be produced to plaintiff: EC-C-0014-30, 0060, 00108, 00119, 00126-53, 00161-79, 00180-81, 00204-20, 00223-25, 00227. In these documents, no legal advice is rendered or rendered apart from policy recommendations. As noted in Mobil, the County Defendants here “failed to show that the information was being communicated for the purpose of primarily securing legal advice, opinion, services or assistance,” 102 F.R.D. at 13. Just because an attorney drafts a policy statement does not render that statement attorney-client communication. The privilege applies only if the attorney in that instance is acting as an attorney and not in some other role, such as policy maker, see Mobil, supra, 102 F.R.D. at 9, 10 (quoting Colton v. United States, 306 F.2d 633, 637 (2d Cir.1962)).
The remaining documents identified in the privilege log constitute attorney-client communications subject to the privilege and need not be produced. Counsel for the County Defendants shall make arrangements to retrieve from Chambers the in camera documents. They may also consider filing the in camera declarations submitted in support of retaining the attorney-client privilege to preserve the record on any subsequent appeal.
So Ordered.
	  

Footnotes

1

The “County Defendants” consist of Erie County, its former and present Sheriffs and named Sheriff’s Department officials who

were allegedly responsible for the Erie County Holding Center and the Erie County Correctional Facility, all of the defendants in

this action save defendant Gipson (who is separately represented).

	  

2

 
 Pritchard v. County of Erie, Not Reported in F.Supp.2d (2006)

KeyCite Red Flag - Severe Negative Treatment Vacated and Remanded by In re County of Erie, 2nd Cir.(N.Y.), January 3, 2007
2006 WL 3872844 Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Adam PRITCHARD, et al., Plaintiffs, v.
THE COUNTY OF ERIE, et al., Defendants.
No. 04-CV-00534C(SC). | April 17, 2006.
Attorneys and Law Firms
Bruce E. Menken, Beranbaum Menken Ben-Asher & Bierman LLP, Alexander E. Barnett, The Mason Law Firm, PC, New York, NY, Charles Joseph Laduca, Cuneo Gilbert & Laduca, LLP, Washington, DC, David G. Jay, Buffalo, NY, Elmer R. Keach, III, Law Offices of Elmer Robert Keach III, Amsterdam, NY, for Plaintiffs.
Frank T. Gaglione, Frank T. Gaglione, P.C., Amherst, NY, Kristin Klein Wheaton, James Paul Domagalski, Hiscock & Barclay LLP, Buffalo, NY, for Defendants.
Opinion
CURTIN, J.
*1 By order dated December 9, 2004 (Item 5),1 this matter was referred to United States Magistrate Judge Hugh B. Scott, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), to conduct all pretrial matters. On January 4, 2006, Judge Scott issued an order (Item 78) granting in part plaintiffs’ “omnibus motion” for various forms of pretrial relief (Item 25) and directing the “County Defendants”2 to produce several documents as to which those defendants claim attorney-client privilege or attorney work product protection. On January 19, 2006, the County Defendants filed objections (Item 79) to Judge Scott’s order, and have submitted the disputed documents under “proposed seal” for further in camera review (id., Ex. C). The court has also received plaintiffs’ memorandum of law (Item 85) in opposition to the County Defendants’ objections, and the reply affirmation of James P. Domagalski, Esq. (Item 90), counsel for the County Defendants.
District court review of magistrate judges’ discovery-related rulings is governed by Rule 72(a) of the Federal Rules of Civil Procedure and the Federal Magistrates Act, 28 U.S.C. §§ 636(b)(1)(A). Both the rule and the statute state that as to non-dispositive matters, a district court shall reverse a magistrate judge’s order only

where it has been shown that the order is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a).
Elaborating on this standard, the Supreme Court has held that a finding is “clearly erroneous” if the reviewing court is “left with the definite and firm conviction that a mistake has been committed.” Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (quoting United States v. United Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). A judicial finding is not rendered clearly erroneous simply because the reviewing court “would have decided the case differently.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Rather, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 574 (1985) (citing United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949)). A finding is considered to be contrary to law “when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Catskill Dev., L.L.C. v. Park Place Entertainment Corp., 206 F.R.D. 78, 86 (S.D.N.Y.2002) (citation omitted).
Under this standard, the district court affords magistrate judges “broad discretion in resolving discovery disputes and reversal is appropriate only if their discretion is abused.” Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A., 2004 WL 3019767, at *2 (S.D.N.Y. December 29, 2004) (quoting Derthick v. Bassett-Walker Inc., 1992 WL 249951, at *8 (S.D.N.Y. Sept.23, 1992)). Thus, a party seeking to overturn or modify a discovery order bears a heavy burden. Schwartz v. Metropolitan Property and Cas. Ins. Co., 393 F.Supp.2d 179, 181 (E.D.N.Y.2005).
*2 Upon consideration of the matters set forth in the parties’ submissions and in Judge Scott’s January 4, 2006 order, the court finds that the County Defendants have failed to meet this burden. After in camera review of the documents at issue, consisting of correspondence between former Assistant County Attorney Kristin Baudo Machelor and various Erie County Sheriff’s Department personnel regarding the drafting and implementation of a revised strip-search policy for the County’s Holding Center and Correctional Facility, Judge Scott determined that the information in those documents goes beyond the rendering of legal advice “into the realm of policy making and administration” and, as a result, is not protected from disclosure by the attorney-client privilege (Item 78, p. 4). Judge Scott relied upon the legal precedent established in cases decided within the Second Circuit, such as Mobil Oil Corp. v. Department of Energy, 102 F.R.D. 1 (N.D.N.Y.1983), and Ames v. Black Entertainment Television, 1998 WL 812051 (S.D.N.Y. November 18,
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1998), in determining that the privilege did not apply where the Assistant County Attorney was acting as an advisor on prison policy and procedure rather than as a legal advisor or advocate.
Having considered the holdings in these and other pertinent cases, having conducted its own in camera review of the disputed documents, and having fully considered Judge Scott’s findings under the highly deferential standard of review provided in Fed.R.Civ.P. 72(a) and 28 U.S.C. § 636(b)(1)(A), this court finds no clear error of fact, misapplication of the law, or abuse of

discretion that would warrant setting aside or modifying the magistrate judge’s January 4, 2006 order in any way. Accordingly, the County Defendants’ objections are overruled, and counsel shall make arrangements for the production of the in camera documents as directed by Judge Scott.
So ordered.
	  

Footnotes

1

The December 9, 2004 referral order was signed by Chief United States District Judge Richard J. Arcara, acting in lieu and stead of

the undersigned during a temporary period of illness.

2

As explained by Judge Scott in his January 4, 2006 order:

The “County Defendants” consist of Erie County, its former and present Sheriffs and named Sheriff’s Department officials

who were allegedly responsible for the Erie County Holding Center and the Erie County Correctional Facility, all of the

defendants in this action save defendant [H. McCarthy] Gipson (who is separately represented).

(Item 78, p. 1 n. 1).

	  

2

 
 Pritchard v. County of Erie, Not Reported in F.Supp.2d (2006)

2006 WL 1455484 Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Adam PRITCHARD, et al., Plaintiffs, v.
The COUNTY OF ERIE, et al., Defendants.
No. 04CV534C. | May 22, 2006.
Attorneys and Law Firms
Bruce E. Menken, Beranbaum Menken Ben-Asher & Bierman LLP, Alexander E. Barnett, The Mason Law Firm, PC, New York, NY, Charles Joseph Laduca, Cuneo Gilbert & Laduca, LLP, Washington, DC, David G. Jay, Buffalo, NY, Elmer R. Keach, III, Law Offices of Elmer Robert Keach III, Amsterdam, NY, for Plaintiffs.
Frank T. Gaglione, Frank T. Gaglione, P.C., Amherst, NY, Kristin Klein Wheaton, Assistant County Attorney, James Paul Domagalski, Hiscock & Barclay LLP, Thomas C. D’Agostino, Mattar, D’Agostino & Gottlieb, LLP, Buffalo, NY, for Defendants.
Opinion
Order
HUGH B. SCOTT, Magistrate Judge.
*1 Before the Court is a continuation of discovery motion practice related to production of certain privileged documents; here, plaintiffs move to compel (Docket No. 110, May 18, 2006) the County Defendants1 to produce documents ordered by the undersigned (Docket No. 78; see Docket No. 25) and affirmed on appeal to Judge Curtin (Docket No. 106). Defendants sought unsuccessfully a stay of Judge Curtin’s Order to allow them to appeal the Order to compel to the United States Court of Appeals for the Second Circuit (Docket Nos. 107, 113; see also Docket No. 109). The Order denying

the stay application referred plaintiffs’ motion to compel to the undersigned for scheduling and disposition (Docket No. 113).
The latest Scheduling Order in this case (Docket No. 103, Order at 9-14) set class certification discovery to be completed by May 1, 2006, with class certification motion by July 10, 2006, with all discovery to be completed by September 12, 2006, and dispositive motions by December 27, 2006 (id. at 12-13, 13-14). That Order expressly stated that no further extensions of these deadlines would be granted (id. at 13, 14) and the Court concluded there that it “expect[ed] going forward timely completion of discovery and motion practice and ultimately progressing this case to the merits” (id. at 13, citing Docket No. 52, Order of Sept. 26, 2005, at 35).
Meanwhile, counsel for the County Defendants wrote to Judge Curtin requesting a brief period to respond to plaintiffs’ motion (Docket No. 112, letter of May 19, 2006). Any response would essentially be a motion for reconsideration and (given the stated positions of the parties) any disposition here would be appealed. Given the familiarity with these prior motions, the arguments therein, and Orders and the fact that this motion to compel seeks the same relief sought in the earlier motions, briefing was not held and the County Defendants’ request (Docket No. 112) is denied.
The present motion seeks to culminate plaintiffs’ attempt to obtain certain privilege log documents that two judges of this Court have held should be produced. The County Defendants, while seeking a stay while they prepare an appeal, to date have not filed a notice of appeal or moved for a writ of mandamus. There is no reason for this Court to delay production of these documents. Therefore, plaintiffs’ motion to compel (Docket No. 110) is granted; defendants shall produce the documents sought forthwith, barring relief from another court. The County Defendants’ application for time to brief this motion (Docket No. 112) is denied.
So Ordered.
	  

Footnotes

1

As previously used in this action, the term “County Defendants” refers to the defendants Erie County, former and current Erie

County Sheriffs, and certain Sheriff’s Department officials responsible for management of the Erie County Holding Center and

Erie County Correctional Facility, save separately represented defendant H. McCarthy Gipson. Docket No. 78, Order at 1 n. 1; see

Docket No. 106, Order at 1 n. 2.

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Pritchard v. County of Erie, Not Reported in F.Supp.2d (2006)
	  
2

 
 Pritchard v. County of Erie, Not Reported in F.Supp.2d (2006)

2006 WL 2927852 Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Adam PRITCHARD, et al., Plaintiffs, v.
The COUNTY OF ERIE, et al., Defendants.
No. 04CV534C. | Oct. 12, 2006.
Attorneys and Law Firms
Bruce E. Menken, Beranbaum Menken Ben-Asher & Bierman LLP, Alexander E. Barnett, The Mason Law Firm, PC, New York, NY, Charles Joseph Laduca, Cuneo Gilbert & Laduca, LLP, Washington, DC, David G. Jay, Buffalo, NY, Elmer R. Keach, III, Law Offices of Elmer Robert Keach III, Amsterdam, NY, for Plaintiffs.
Frank T. Gaglione, Frank T. Gaglione, P.C., Amherst, NY, James Paul Domagalski, Hiscock & Barclay LLP, Thomas C. D’Agostino, Mattar, D’Agostino & Gottlieb, LLP, Kristin Klein Wheaton, Assistant County Attorney, Buffalo, NY, for Defendants.
Opinion
Order
HUGH B. SCOTT, Magistrate Judge.
*1 Before the Court is plaintiffs’ motion for court supervision of deposition of Kristin Machelor (Docket No. 1401) as well as some defendants’ alternative application for similar relief (Docket No. 149, County Defs. Atty. Affirm. ¶ 15). The County Defendants2 alternatively sought denial of this deposition (id. Wherefore cl. (A)) or precluding lines of questioning plaintiffs could ask Machelor (id. Wherefore cl. B)), but have not formally moved for a protective order or to quash the underlying subpoena. This is all far afield from the major procedural issue pending in this case (that is, plaintiffs’ class certification motion (Docket No. 131)) as well as the underlying merits in this case.
Responses to this motion were due on or before September 18, 2006, and any reply was due by September 25, 2006. Oral argument was held on October 11, 2006, following the previously scheduled settlement conference. (Docket No. 142.) This motion was deemed submitted following that argument (Docket No. 151).

BACKGROUND
As the parties are well aware, this case is a putative class action (see Docket No. 131) asserted by three individuals who were detained by the Erie County Sheriff in either the Erie County Holding Center or the Erie County Correctional Facility. Plaintiffs allege that they were strip searched without individualized suspicion while in the County Defendants’ custody.
Pertinent to this motion, plaintiffs obtained in discovery several e-mails sent by former Assistant County Attorney Kristin Machelor to individual defendants and other Sheriff’s Department officials regarding the Sheriff’s Department’s evolving policies regarding inmate strip searches. The parties engaged in a great deal of motion practice surrounding production of these e-mail transmissions (Docket Nos. 25, 80, 107 (motions); 52, 78, 106, 113 (orders), including a pending writ of mandamus before the United States Court of Appeals for the Second Circuit, see In re Erie County (Pritchard v. Erie County), No. 06-2459 (2d Cir.2006); see Docket No. 149, County Defs. Atty. Affirm. Ex. A (2d Cir. notice of writ of mandamus scheduled for consideration during motion day of September 12, 2006)). To date, the Second Circuit has not ruled on this writ of mandamus.
Plaintiffs next subpoenaed Machelor (Docket No. 140, Pls. Atty. Affirm. ¶ 4, Ex. C) to produce documents and appear at a deposition. According to plaintiffs’ counsel, Machelor’s attorney indicated that she would refuse to answer questions about these e-mails, claiming that they were privileged attorney-client communications and that this Court had not resolved the issue of the privileged nature of the communications (id. ¶ 4). At oral argument, Machelor’s counsel indicated that he would instruct his client only to answer questions confirming whether she wrote the e-mails in questions and not other questions regarding her thought processes.
Plaintiffs now seek either leave to conduct Machelor’s examination in Court before the undersigned or to have the Court available by telephone to resolve disputes that may arise from this deposition. They also move for the Court to set a date (or series of possible dates) for this deposition. (Id. ¶ 5). Plaintiffs do not claim that the Court would have to attend the entirety of the deposition (id.) but only those parts in which Machelor (or defendants) raise an objection requiring a ruling (id.). But the nature of plaintiffs’ potential questioning (for example, detailing how Machelor came to writing the e-mails in question, her other communication to defendants) may require such supervision over the entire deposition.
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Pritchard v. County of Erie, Not Reported in F.Supp.2d (2006)

*2 Machelor objects to the examination as an invasion of privileged attorney-client communication with her former client (see generally Docket No. 147), as the defendants all join in that objection (see generally Docket Nos. 148, 149). Machelor and defendants all contend that her deposition would breach attorney work product privilege (Docket No. 147, Machelor Atty. Affirm. ¶ 14; Docket No. 149, County Defs. Atty. Affirm. ¶ 4; Docket No. 149, County Defs. Memo. of Law at 2, 5-7; Docket No. 148, Gipson Atty. Affirm. ¶ 6). Machelor argues that deposing “counsel for an opposing party during discovery is disfavored” (Docket No. 147, Machelor Atty. Affirm. ¶ 15; see also Docket No. 148, Gipson Atty. Affirm. ¶ 6). But all acknowledge that she is a former Assistant County Attorney (see, e.g., Docket No. 147, Machelor Atty. Affirm. ¶ 3) and clearly not counsel for defendants in this action. Machelor argues that plaintiffs are attempting to create an “impossible conflict” between her and her former client (Docket No. 147, Machelor Atty. Affirm. ¶ 22). While she owes ethical obligations to her former client, see 22 N.Y.C.R.R. §§ 1200.27 (DR 5-108, conflict of interest regarding former client), 1200.21 (DR 5-102, lawyer as witness), 1200.45(b) (DR 9-101(b), obligation of former government attorney to former government client), those are not the same as an attorney whom her opponent is trying to turn into a witness in the case.
The County Defendants also seek an Order precluding plaintiffs “from questioning Ms. Machelor with respect to her mental impressions, conclusions, opinions, legal theories, or advice to the County Defendants as such a deposition is unnecessary,” (Docket No. 149, County Defs. Atty. Affirm. ¶ 14), or for Court supervision of this deposition to preclude such questioning by plaintiffs (id. ¶ 15). Note, no one has moved to quash the subpoena, nor has served a timely objection to the subpoena, cf. Fed.R.Civ.P. 45(c)(2(B), nor has anyone moved for a protective order, cf. id. R. 26(c).
DISCUSSION
I. Supervised Deposition Again, discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 655-65 (Civil 2d 1994). While not citing to the Federal Rules of Civil Procedure in support of their motion, plaintiffs essentially move to compel Machelor’s testimony in front of the Court or with judicial supervision of the deposition, cf. Fed.R.Civ.P. 37(a)(2)(B), (3), 30(c), anticipating problems from this witness before she testifies. In their alternative argument

that plaintiffs’ deposition of Machelor should be controlled by Court supervision (see Docket No. 149, County Defs. Memo. at 8), the County Defendants also do not cite authority for such supervision. Courts do have the discretion to order depositions to occur in the courthouse under judicial supervision, see 8A Federal Practice and Procedure, supra, § 2112, at 89-90.
*3 Plaintiffs (and, for different purposes, the County Defendants) seek Court supervision of this deposition, either to be held in the courtroom or with the Court available to be contacted as issues arose. The County Defendants, while arguing against judicial supervision as sought by plaintiffs, alternatively urge for Court supervision of this deposition to preserve their attorney-client privilege as well as attorney work product privilege (see Docket No. 149, County Defs. Affirm. ¶ 15).
Plaintiffs only cite the United States District Court for the Southern District’s decision in Condit v. Dunne, 225 F.R.D. 100, 112 (S.D.N.Y.2004) ( Docket No. 140, Pls. Memo. at 2), involving discovery in a sensational slander action arising from a notorious congressman and the mysterious disappearance and death of Chandra Levy. In Condit, defendant moved to compel plaintiff to answer questions in three areas he refused to answer during his deposition, 225 F.R.D. at 102, 105. After setting forth the scope of allowed question in those three areas, see id. at 108-12, Judge Leisure there found that the parties in that case “would benefit from on-hand Court supervision of their depositions,” referring that supervision to a Magistrate Judge to supervise consistent with Federal Rule of Civil Procedure 30 and the court’s Order, id. at 112-13.
Here, plaintiffs seek to examine a non-party witness who is an attorney ostensibly about four series of e-mail transmissions she sent to her client, and seeking an advance ruling on the scope of that examination, essentially a motion to compel before the witness has refused to answer. While this Court once held that (if the parties persisted in their vexatious behavior) it may resort to various devices including micro management of discovery (Docket No. 52, Order at 6, 35), Court supervision of this witness’s deposition is not warranted here and the Court declines to exercise its discretion in supervising this deposition.
While an advance ruling on the scope of a deposition may be desirable to the parties (by providing immediate guidance prior to or as the examination proceeds, avoiding multiple motions and interruptions in the examination), the normal practice (absent a motion to quash the subpoena or for a protective order) is to allow a deposition to go forward and have the parties complete as much of it as possible before reaching an impasse. In that way, the parties create a record of where questionable
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Pritchard v. County of Erie, Not Reported in F.Supp.2d (2006)

inquiries, objections or assertions of privilege arose and furnish a context for the disputes when a party makes a motion to resolve the dispute (either to compel answers or to enforce privileges and objections). Based upon a concrete record, the Court facing that later motion then can determine whether a particular line of questions should or should not be answered or whether an objection or privilege has merit. This is especially beneficial where, as here, the very issue of the scope of allowable testimony is (in one sense) pending before the Second Circuit, cf. In re Erie County, supra, No. 06-2459. Rule 30(d) contemplates that a deposition would commence and, if determined that it was either “conducted in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress the deponent or party,” relief could be sought from the Court either to end it or to restrict its scope, Fed.R.Civ.P. 30(d)(4).
*4 In this regard, the only authority cited by any party for judicial supervision, Condit, supra, 225 F.R.D. 100, is distinguishable; that case did not involve an anticipatory request for judicial supervision of a contentious deposition. See also Jeffrey W. Stempel, 7 Moore’s Federal Practice-Civil § 30.06, at 30-34 (2006) (in rare instances, Court may order deposition before a “discovery master,” usually employed after repeated applications to the Court to resolve discovery issues or numerous objections, interruptions or other inappropriate behavior, citing Van Pilsum v. Iowa St. Univ. of Science & Tech., 152 F.R.D. 179, 181 (S.D.Iowa 1993)). Rather, judicial supervision was ordered after the parties attempted to conduct the deposition and reached impasses that called for judicial intervention and (sensing the contentiousness of the issues involved) ultimately judicial supervision, Condit, supra, 225 F.R.D. at 105, 112.
Here, plaintiffs seek an advance ruling as to the propriety of asking certain questions to Machelor; similarly, the County Defendants in seeking judicial supervision (and to a lesser degree Gipson) also seek an advance ruling as to the viability of the privileges they intend to assert. Machelor’s entire deposition probably will consist of questions she would claim is subject to attorney-client or work product privileges, not only to authenticate and explain her e-mails to her former clients but possibly other communications she had with them relative to this action. At oral argument, plaintiffs indicated that they may ask about Machelor’s communications with her client and with policy makers, and her factual assertions in the e-mail transmissions. Plaintiffs appear to stretch the ruling allowing disclosure of the e-mails as removal of all privilege regarding Machelor. Note, Machelor has not moved to quash the subpoena served upon her, but instead expressed her intention (through counsel) not to answer questions she believed would infringe upon that attorney-client privilege as to her former clients or her attorney work product privilege (see Docket No. 140, Pls. Atty. Affirm. ¶ 4; Docket No. 147, Machelor Atty.

Affirm. ¶¶ 7-8, 14; Docket No. 147, Machelor Memo. of Law at 4-5). The parties are trying to obtain an advisory opinion as to the propriety and scope of the questioning of Machelor regarding her communications with her former clients, absent a record to enable the Court to render such an opinion. Plaintiffs present this issue in a vacuum, without disclosing what questions they intend to ask and what the witness’s (or other parties’) objections to those questions might be, aside from stating their intention “to question her extensively about representations made in those email [sic], and about her efforts to change county policy relative to strip searches” (Docket No. 140, Pls. Atty. Affirm. ¶ 5).
Rather than guessing further what the line of questioning or the objections to that line will be that may require judicial supervision, plaintiffs’ motion for Court supervision of deposition of Machelor is denied.
*5 Plaintiffs also asked that the Court set the date for this deposition (Docket No. 140, Pls. Motion ¶ 5). This deposition will be held on Friday, November 24, 2006, starting at 9:30 am; the witness and counsel for the parties should make themselves available at that date and time for this deposition. After the parties reach a mutually agreed upon site for the deposition3, plaintiffs’ counsel should conduct that deposition and ask the questions they intend to, with Machelor or defendants preserving form objections, see Fed.R.Civ.P. 30(d)(1); cf. Hall v. Clifton Precision, 150 F.R.D. 525 (E.D.Pa.1993); DirecTV v. Rowland, Case No. 04CV297, Docket No. 454 (W.D.N.Y. May 27, 2005) (Scott, Mag. J.) (sanctioning defense counsel for his conduct during defendant’s deposition). (See also Docket No. 52, Order at 20-21.) This deposition shall be conducted for no longer than seven hours, see Fed.R.Civ.P. 30(d)(2). Note, counsel may not instruct a witness like Machelor not to answer save to preserve a privilege and counsel are to make objections in a non-argumentative and non-suggestive manner, Fed.R.Civ.P. 30(d)(1), that any impediment, delay or other conduct to frustrate the examination may be sanctionable, id. R. 30(d)(3). But such an Order to control the conduct of that deposition will occur here only after it has begun and a record has been made to show the problems leading to judicial intervention. If, after that deposition, plaintiffs still need to have objected and unanswered questions answered, they can move (upon this developed record) to compel her testimony, id. R. 37(a)(2)(B), (3); similarly, defendants can move for a protective order to prevent plaintiffs from insisting upon answers to these questions. The benefit of this approach of first attempting to conduct the deposition then seeking judicial intervention on particular matters is that there is a fleshed out record that focuses the Court’s inquiry on whether a particular question is or is not privileged.
3

Pritchard v. County of Erie, Not Reported in F.Supp.2d (2006)

II. Should This Deposition Go Forward? Machelor suggests (see Docket No. 147, Machelor Memo. of Law at 7-8) and the County Defendants urge (Docket No. 149, County Defs. Atty. Affirm. ¶¶ 14-15, Wherefore cl. (A), (B)) that Machelor’s deposition either not occur at all or that plaintiffs be restricted to not obtaining her mental impressions, conclusions, opinions, legal theories or advice (Docket No. 149, County Defs. Atty. Affirm. Wherefore cl. (B)) to uphold the attorney-client privilege. Gipson takes the tact of seeking an Order which merely preserves his ability to invoke the attorney-client privilege (Docket No. 148, Gipson Atty. Affirm. Wherefore cl.); no order is needed to reaffirm defendants’ ability to object and make a record of such objections, see Fed.R.Civ.P. 30(d)(1).
Rule 30(d)(4) allows the Court to restrict the scope or cease entirely a deposition if “conducted in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress the deponent or party.” The issuance of an Order to terminate a deposition is within the sound discretion of the Court and, according to one commentator, is sparingly used, 7 Moore’s Federal Practice-Civil, supra, § 30.51, at 30-79 (2006). “To obtain a protective order under Rule 30(d), the moving party has the burden of proving that the examination was being conducted in bad faith or in such a manner as to unreasonably annoy, embarrass, or oppress the deponent or a party,” id.; see Hearst/ABC-Viacom Entertainment Servs. v. Goodway Mktg., Inc., 145 F.R.D. 59, 62 (E.D.Pa.), modified on other grounds, 815 F.Supp. 145 (E.D.Pa.1992).
*6 Again, rather the surmise what direction plaintiffs intend to go with questioning Machelor and preclude it entirely (especially when neither she nor any of the defendants have timely moved to quash the subpoena or sought an order of protection), the deposition will go forward. Machelor and defendants may raise as objections any areas they believe venture into attorney-client or attorney work product privileges (among other potential, pertinent objections). As defendants and Machelor noted, this Court has only allowed production of certain e-mails and has not ruled upon other aspects of Machelor’s testimony (including areas of her legal representation of her former client and areas that may be irrelevant to this action) or the scope of any privilege she or defendants may assert. Again, rather than rule in a vacuum either to compel answers or to bar questions, the deposition will go forward, absent Court supervision. Plaintiffs ask questions, defendants and Machelor may raise objections and assert privileges (even instruct Machelor not to answer to preserve privileges, see Fed.R.Civ.P. 30(d)(1)), and make a record regarding the controverted questions and objections. If necessary, an aggrieved party may return to this Court, with a record, to determine the appropriate scope of the questioning and the assertion of the privilege or objection. Perhaps by that time the United States Court of Appeals for the Second Circuit may have

ruled on the pending writ of mandamus and further inform this dispute (see Docket No. 149, County Defs. Atty. Affirm. Ex. A).
III. How This Deposition Is to Be Conducted As plaintiffs argued, if their motion is denied, they will depose Machelor to impasse, then move to compel5 her to answer questions she declined to answer or she (or defendants) asserted privilege against answering, see Fed.R.Civ.P. 37(a)(3), 30(d)(3). Once the Court rules on that motion, and assuming that further questioning is allowed, plaintiffs would resume Machelor’s deposition until another impasse is reached, then again move to compel, apparently ad infinitum. In other words, plaintiffs propose multiple motions to compel for this single deposition.
While an advance ruling may avoid this scenario (cf. at page 6, supra ), no such ruling shall be rendered especially in the absence of a concrete question or objection and a record. This scenario of repeated motions gets closer to the situations in Condit, supra, 225 F.R.D. at 112, and where courts have appointed a “discovery master,” where judicial supervision has been ordered.
To minimize the possibility of repeated motion practice and appearances on this particular deposition, as stated above the total time for this deposition (with any judicial interventions) shall be seven hours of examination, see Fed.R.Civ.P. 30(d)(2). At the conclusion of the initial deposition session, the parties may make their respective motions to compel or for a protective order restricting questioning. Those motions will be considered on the moving papers only without oral argument unless the Court determines that such argument is necessary. Following the ruling on such motions and, if questioning is authorized, plaintiffs shall only have the balance of the seven hours not used by them in the earlier examination.
*7 For example, the initial deposition takes four hours when a motion is filed. If a motion to compel is granted, plaintiffs now have only three hours to continue questioning. If plaintiffs then use those three hours but further issues arise during the continued deposition that would warrant another round of motion practice, plaintiffs’ time to continue the deposition has expired and (barring a stipulation to extend the time to continue the deposition, cf. Fed.R.Civ.P. 30(d)(2)) another motion to compel would be denied because (despite the merits of the proposed question or objection) plaintiffs would not have additional time to complete that questioning. The seven total hours of examination, with intervening motion practice, is all that will be allocated to examine this witness. A fair examination of this witness can occur within seven hours, cf. Fed.R.Civ.P. 26(b)(2), 30(d)(2), and it is a sufficient amount of time to examine her on the
4

Pritchard v. County of Erie, Not Reported in F.Supp.2d (2006)

limited issues surrounding the e-mails at issue. While all parties should keep track of the hours expended in this deposition, all counsel are reminded of Rule 30’s admonition against impeding, delaying, or otherwise frustrating this deposition to exhaust the seven hours before plaintiffs have a chance to examine the witness, cf. id. R. 30(d)(3), (2).
The Court will not entertain telephone calls during the depositions and all motions shall be upon the papers only.
IV. Contempt Plaintiffs previously raised the specter of discovery misconduct during other depositions in this action (Docket No. 25, Pls. Atty. Affirm. ¶ 19; see Docket No. 120, Pls. Atty. Affirm. ¶ 14), one time moving for a protective order regarding the manner of the conduct of depositions (Docket No. 25). In granting in part and denying in part that portion of plaintiffs’ earlier motion (Docket No. 52, Order at 21), the Court noted that it
“may resort to various devices under the Rules and within its inherent supervisory authority to control the conduct of the parties and counsel in this case, for example micro management of discovery or sanctions under Rules 11, 16(f), 37, and 28 U.S.C. § 1927 for unreasonable and vexatious conduct by counsel. This case needs to get to its merits and not dwell on arguments for the sake of vexatious litigation. Continuing down the current path of this action will inevitably lead to further delays, added expense, and ultimately justice denied.”
(id. at 35.) Now plaintiffs (and, to a degree, some defendants) wish to have the Court supervise this one particular deposition to rule upon the questioning or privileges.

As tempting as this situation may be for Court supervision and micro management, the Court would not interrupt its otherwise busy calendar or tie up a courtroom to supervise a single deposition which, by rule, could go on for up to seven hours, see Fed.R.Civ.P. 30(d)(2), unless the Court grants additional time to complete it, id. At this time, the Court declines to engage in the micro management of this one deposition. But if the record is developed and plaintiffs are compelled to seek redress to have their questions answered or the witness or defendants need established the scope of the attorney-client privilege in this action as to this witness, the Court will entertain that motion.
CONCLUSION
*8 For the reasons stated above, plaintiffs’ latest motion for Court supervision of their examination of Kristin Machelor (Docket No. 140) is denied. The County Defendants’ request either to preclude Machelor’s examination or to restrict its content (see Docket No. 149, County Defs. Atty. Affirm. ¶ 15) or Court supervision of this examination to preserve their privileges (see Docket No. 149, County Defs. Memo. at 8) is also denied. This deposition will be held on Friday, November 24, 2006, starting at 9:30 am. Within five (5) business days of entry of this Order, the parties are to reach a mutually convenient site for this examination. This deposition shall be conducted it without Court supervision and shall not be conducted in the courtroom of this Court. But all parties reserve their respective rights during and at the conclusion of the examination to seek whatever relief they deem appropriate. Plaintiffs have a total of seven hours to conduct the deposition of this witness, inclusive of whatever continued examination subsequently authorized upon a motion to compel or denied motion for a protective Order.
So Ordered.
	  

Footnotes

1

Plaintiffs submitted in support of this motion their attorney’s affirmation with exhibits, memorandum of law, Docket No. 140.

In opposition, Machelor submitted her attorney’s affirmation and memorandum of law, Docket No. 147. Defendants each

submitted attorneys’ affirmations in opposition to plaintiffs motion, Docket Nos. 148 (Gipson), 149 (County Defendants) (with

exhibits). The County Defendants also submitted a memorandum of law, Docket No. 149.

2

As previously identified in other Orders, they are former Sheriff Gallivan, current Sheriff Howard, Sheriff’s Department officials

Huggins and Livingston, and the County of Erie.

3

Given the acrimonious history in this case and the acute ire of this particular discovery issue, compare Docket No. 52, Order at 5-6,

35, if the parties cannot arrive at a mutually agreed upon date the Court has means of establishing such a date, see Avista

Management, Inc. v. Wausau Underwriters Ins. Co., No. 05cv1430, Docket No. 106, 2006 U.S. Dist. LEXIS 38526 (M.D. Fla.

5

Pritchard v. County of Erie, Not Reported in F.Supp.2d (2006)

June 6, 2006) (“rock, paper, scissors” to determine site for deposition, absent parties agreement), order vacated, Docket No. 109 (Order June 26, 2006).

4

Appended to this Order is a copy of the Order in DirecTV v. Rowland.

5

Or defendants or Machelor may move for a protective Order, see Fed.R.Civ.P. 26(c), 30(d)(4).

	  

6

 
 Pritchard v. County of Erie, Not Reported in F.Supp.2d (2007)

KeyCite Red Flag - Severe Negative Treatment On Reconsideration Pritchard v. County of Erie, W.D.N.Y., October 31, 2007
2007 WL 1703832 Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Adam PRITCHARD, et al., Plaintiffs, v.
The COUNTY OF ERIE, et al., Defendants.
No. 04-CV-00534C(SC). | June 12, 2007.
Attorneys and Law Firms
Elmer R. Keach, III, Esq., Amsterdam, NY, for Plaintiffs.
Frank T. Gaglione, Esq., Amherst, NY, for County Defendants.
Eric T. Boron, Esq., Buffalo, NY, for Defendant H. McCarthy Gipson.
Opinion
JOHN T. CURTIN, United States District Judge.
*1 In accordance with the January 3, 2007, decision of the United States Court of Appeals for the Second Circuit, see In re County of Erie, 473 F.3d 413 (2d Cir.2007), this court directed briefing and argument to determine whether a waiver of the attorney-client privilege had occurred with respect to e-mail communications between an Assistant Erie County Attorney and employees of the Erie County Sheriff’s Department. Oral argument was heard on May 14, 2007. The following is the court’s ruling on this issue.
BACKGROUND
This action was commenced in July 2004 by plaintiffs Adam Pritchard, Edward Robinson, and Julenne Tucker seeking relief pursuant to 42 U.S.C. § 1983, individually and on behalf of a class of others similarly situated. Plaintiffs allege that since at least 2001, the Sheriff’s Department had implemented a policy to subject every detainee who entered the Erie County Holding Center (“ECHC”) or the Erie County Correctional Facility (“ECCF”) to an invasive strip search without regard to individualized suspicion or the severity of the offense alleged, in violation of the Fourth Amendment. Named as

defendants are the County of Erie; Patrick Gallivan, former Erie County Sheriff; Timothy Howard, former Undersheriff (now Sheriff); Donald Livingston, Superintendent of the ECCF; Robert Huggins, former Deputy Superintendent; and H. McCarthy Gipson, former Superintendent of the ECHC.
The County, along with individual defendants Gallivan, Howard, Livingston, and Huggins (referred to herein as the “County Defendants”) filed an answer, asserting generally that “no ‘policy’ of conducting a ‘strip search’ of each individual upon entry of its facilities, regardless of particular circumstances, exists or has been followed during any time period alleged in the Complaint” (Item 3, ¶ 6). The County Defendants also asserted several defenses, including the affirmative defense of qualified immunity (id. at ¶ 22). Defendant Gipson filed a separate answer, asserting an identical denial of the existence of a policy to conduct strip searches without regard to individualized suspicion or the offense alleged (see Item 4, ¶ 7) and an identical qualified immunity defense (id. at ¶ 39).
In response to plaintiffs’ discovery demands, the County submitted a privilege log identifying many (approximately 70) e-mail communications between the County Attorney’s office (primarily involving former Assistant County Attorney Kristin Baudo Machelor) and Sheriff’s Department officials as to which the County claimed protection from disclosure by the attorney-client privilege and the attorney work product doctrine (see Item 25, Exs. M, N). When plaintiffs moved to compel production of the documents listed in the privilege log (see id., Attachment 1), the County submitted the disputed documents to Magistrate Judge Hugh B. Scott, to whom the matter had been referred for supervision of pretrial matters, for in camera inspection.
*2 Upon review of the documents, Judge Scott issued an order dated January 4, 2006, in which he sustained the claim of privilege with respect to many of the items listed in the log as seeking or providing legal advice, or as attorney work product (see Item 78). However, Judge Scott ordered production of ten of the withheld e-mails (or “e-mail chains”), finding that the matters discussed in those communications went beyond the rendering of legal advice “into the realm of policy making and administration” and, as a result, the attorney-client privilege did not apply (id. at p. 4).
After considering the County’s objections to this order, this court independently reviewed the disputed e-mails in camera and, applying the highly deferential standard of review provided in Fed.R.Civ.P. 72(a) and 28 U.S.C. § 636(b)(1)(A), found “no clear error of fact, misapplication of the law, or abuse of discretion that would warrant
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Pritchard v. County of Erie, Not Reported in F.Supp.2d (2007)

setting aside or modifying the magistrate judge’s January 4, 2006 order in any way” (Item 106, p. 4). The court directed counsel to make arrangements for production of the disputed documents in accordance with Judge Scott’s ruling.

Defendants then sought mandamus review by the Second Circuit, and in the meantime moved to stay the application of the order directing production of the disputed e-mails pending appellate court review. Both this court and a motions panel of the Second Circuit denied defendants’ request for a stay pending appeal, resulting in the release of the ten disputed e-mail communications to the plaintiffs.

The Second Circuit subsequently took up the mandamus petition and granted the writ, finding that the petition raised the following issue of first impression: “whether the attorney-client privilege protects communications that pass between a government lawyer having no policymaking authority and a public official, where those communications assess the legality of a policy and propose alternative policies in that light.” In re County of Erie, 473 F.3d at 417. The circuit court answered this question in the affirmative, disagreeing with the magistrate judge’s conclusion that the information discussed in the disputed e-mails went beyond legal analysis into the policymaking realm. The circuit court determined instead that the e-mails, “which (variously) reviewed the law concerning strip searches of detainees, assessed the County’s current search policy, recommended alternative policies, and monitored the implementation of these policy changes,” id. at 416, were sent “for the predominant purpose of soliciting or rendering legal advice.” Id. at 422.

They convey to the public officials

responsible for formulating,

implementing and monitoring Erie

County’s corrections policies, a

lawyer’s assessment of Fourth

Amendment requirements, and

provide guidance in crafting and

implementing alternative policies

for

compliance.

This

advice-particularly when viewed in

the context in which it was solicited

and rendered-does not constitute

“general policy or political advice”

unprotected by the privilege.

*3 Id. at 422-23. Accordingly, the circuit court vacated this court’s order affirming Judge Scott’s ruling, and remanded the matter “to determine whether the distribution of some of the disputed e-mail communications to others within the Erie County Sheriff’s Department constituted a waiver of the

attorney-client privilege.” Id. at 423 (citing In re Horowitz, 482 F.2d 72, 81-82 (2d Cir.1973); United States v. DeFonte, 441 F.3d 92, 94-95 (2d Cir.2006) (per curiam ). The circuit court also directed this court to enter an interim order protecting the confidentiality of the disputed e-mails pending determination of the waiver issue.
On January 8, 2007, a telephone status conference was held with the court, during which counsel were directed to simultaneously submit memoranda of law outlining their preliminary positions on the waiver issue. That same day, in accordance with the Second Circuit’s directive on remand, this court issued a written order aimed at protecting the confidentiality of the disputed communications pending determination of the waiver issue. The court also rescinded the referral of pretrial matters to Judge Scott (see Item 162).
Shortly after receiving the parties’ simultaneous submissions on waiver, the court received a letter from plaintiff’s counsel requesting leave to file a motion to compel the County to produce additional e-mail messages which have been identified during deposition testimony but have not been disclosed or listed in any privilege log. In an order dated February 22, 2007 (Item 183), the court denied this request without prejudice to renew pending resolution of the waiver issue. The court also directed supplemental briefing on this issue and scheduled oral argument.1
Upon consideration of the matters addressed by the parties in their written and oral submissions, and for the reasons discussed below, the court finds that defendants have adequately demonstrated that they have protected the confidentiality of the ten disputed e-mail communications at issue by limiting their distribution to Sheriff’s Department employees who had a need to know the information contained therein, and that no waiver of the attorney-client privilege has occurred with respect to those particular communications.
DISCUSSION
It is well recognized that while dissemination of privileged information to third parties generally waives the attorney-client privilege, distribution within a corporation of legal advice received from corporate counsel does not, by itself, necessarily result in waiver. See Strougo v. BEA Associates, 199 F.R.D. 515, 519-20 (S.D.N.Y.2001) (citing Upjohn Co. v. United States, 449 U.S. 383, 391-92 (1981)).2 “This follows from the recognition that since the decision-making power of the corporate client may be diffused among several employees, the dissemination of confidential
2

Pritchard v. County of Erie, Not Reported in F.Supp.2d (2007)

communications to such persons does not defeat the privilege.” Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 442 (S.D.N.Y.1995).
*4 In a case recently decided within this district, Judge David Larimer outlined the appropriate inquiry to determine whether the dissemination of privileged communications to corporate (or in this case, government) employees has waived the privilege: did the recipient “need to know” the content of the communication in order to perform his or her job effectively or to make informed decisions concerning, or affected by, the subject matter of the communication? Scholtisek v. Eldre Corp., 441 F.Supp.2d 459, 464 (W.D.N.Y.2006) (citations omitted). As explained in Scholtisek:
The “need to know” must be analyzed from two perspectives: (1) the role in the corporation of the employee or agent who receives the communication; and (2) the nature of the communication, that is, whether it necessarily incorporates legal advice. To the extent that the recipient of the information is a policymaker generally or is responsible for the specific subject matter at issue in a way that depends upon legal advice, then the communication is more likely privileged.
Id. (quoting Verschoth v. Time Warner Inc., 2001 WL 286763, at *2) (S.D.N.Y. Mar. 22, 2001)). Judge Larimer also recognized the prevailing view in the Second Circuit that the party asserting the privilege has the burden to show that it preserved the confidentiality of the communication by limiting its dissemination only to employees with a need to know the nature of the information contained in the communication. Id. (citing cases).
Upon review of the parties’ submissions on file, including the affirmations of counsel, the declarations of the County employees who received or were copied on the privileged e-mails (see Item 175, Attachments 2-15), and the communications themselves, the court finds that defendants have sustained their burden in this regard.
With respect to the first prong of the “need to know” waiver analysis, it is clear to the court that each of the recipients listed on the printouts of the disputed e-mails was a Sheriff’s Department official whose duties required knowledge of the specific subject matter of the communications to make informed policy decisions, or to effectively perform their jobs, in a way that depended upon the legal advice rendered by the County Attorney’s

Office. Specifically, the following individuals either authored, directly received, or were copied on the majority of the privileged e-mails: Sheriff Gallivan, Undersheriff Howard, Superintendent Livingston, Superintendent Gipson, and Chief Brian Doyle. It is beyond dispute that at the time of the events complained of, these individuals were senior officers responsible for the overall administration of the Sheriff’s Department’s Jail Management Division, and as such needed to know the legal basis for the County Attorney’s recommendation that the Department change its policy for authorizing strip searches of inmates or detainees.
Much of the discussion pertaining to the “waiver by dissemination” analysis has centered on one particular e-mail communication-identified in the privilege log as Bates No. EC-C-00218-19-which was distributed to the following lower-ranking officers: Jeffrey Hartman, Glen Isch, Paul Glinski, Keith Kibler, Kevin Lynch, Frank Odee, John Rosetti, Thomas Vaughan, David Webster, and Howard Webster. These individuals have submitted declarations (see Item 175, Ex. A) indicating that at the time of the events complained of, each held the rank of Sergeant or higher. Plaintiffs contend that while “line sergeants” and other lower-ranking members of the Sheriff’s Department may have needed to know what the Jail Management Division’s strip search policy was, they did not need to know the legal basis for the County Attorney’s recommendation that the policy be changed. Cf. Verschoth, 2001 WL 286763, at *2 (“[T]he autoworker on the assembly line has no need to be advised of the legal basis for a [change] in production even though it affects the worker’s routine and thus is within his or her general area of responsibility. The worker, of course, must be told what new production procedure to implement, but has no need to know the legal background.”).
*5 However, as defendants point out, Judge Scott has previously ruled in this case (in the context of a discovery dispute as to whether plaintiffs’ attorneys could have ex parte contacts with Sheriff’s Department employees) that, “[o]fficers at the rank of sergeant or lieutenant and above ... have administrative and management functions that could be policymaking imputed to the County or Sheriff (such as directing certain actions be undertaken that could be construed as County policy)” (Item 52, p. 32) (citing Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493 (1990) (adopting “alter ego” test to determine whether a corporate employee is a “party” entitled to protection from contact by opposing counsel under attorney disciplinary rule DR 7-104)). The common-sense implication of this determination is that, at least for the purposes of this litigation, officers holding the rank of Sergeant and above should be considered administrative and management employees subject to the attorney-client relationship with the County Attorney’s office. Giving Judge Scott’s ruling its practical application, and in the
3

Pritchard v. County of Erie, Not Reported in F.Supp.2d (2007)

absence of any showing by plaintiffs to convince the court otherwise, the court finds that these officers needed to know the substance of the legal advice contained in Bates No. EC-C-00218-19 in order to make the informed decisions necessary to effectively perform their job duties-including implementing the policy for authorizing strip searches.
The cover memorandum on one of the privileged e-mail communications (EC-C-00161) indicates that a copy of that document was sent to Sue Darlak, identified by defendants as the confidential administrative assistant to the Sheriff. It is well recognized that this type of “disclosure” does not constitute waiver of the privilege. See, e.g., In re Adelphia Communications Corp., 2005 WL 425498, at *8 (S.D.N.Y. February 16, 2005) (receipt of privileged e-mail by secretary for purpose of passing it along to intended recipient did not waive privilege); Abbott Laboratories v. Airco, Inc., 1985 WL 3596, at *4 (N.D.Ill. November 4, 1985) (“A recognized exception to the rule that the communication must be directly between the client and attorney is for ministerial agents of the attorney (such as clerks, secretaries and stenographers) or of the client who facilitate transmission of the communication.”).
The second prong of the “need to know” waiver analysis, i.e., whether the communication necessarily incorporates legal advice, has already been adequately addressed by the Second Circuit in its determination that the attorney-client privilege pertains to the ten disputed communications. In taking the unusual step of granting interlocutory mandamus relief, the circuit court carefully examined the facts of this prolonged discovery dispute in light of the competing policies underlying attorney-client privilege protection for communications between government attorneys and public officials in the context of civil suits between private litigants and government agencies, expressly finding “that each of the ten disputed e-mails was sent for the predominant purpose of soliciting

or rendering legal advice.” In re County of Erie, 473 F.3d at 422.
*6 Based on this analysis, the court concludes that defendants have satisfied their burden of demonstrating with sufficient “factual specificity,” In re PEPCO Employment Litigation, 1992 WL 310781, at *3 (D.D.C. October 2, 1992), that dissemination of any of the ten e-mail communications ruled upon by the Second Circuit was limited to Sheriff’s Department employees who needed to know the content of the communication in order to effectively perform their jobs or to make informed policy decisions concerning the authorization of strip searches of inmates or detainees at the ECHC and ECCF. In the absence of any factual showing by plaintiffs to suggest a contrary result, the court finds that there has been no waiver of the attorney-client privilege pertaining to these particular ten e-mail communications.
CONCLUSION
For all of the reasons stated above, and in accordance with the directives of the Second Circuit’s order of remand in In re County of Erie, this court finds that the distribution of some of the disputed e-mail communications to other employees of the Sheriff’s Department did not constitute a waiver of the attorney-client privilege. Plaintiffs’ motion to compel production of these documents (see Item 25) is denied.
A telephone conference with the court is scheduled for Wednesday, June 27, 2007, at 10 a.m. to discuss an appropriate schedule for further proceedings in this case.
So ordered.
	  

Footnotes

1

In the February 22, 2007 order, the court identified the issues to be addressed in the supplemental briefing as follows:

A. Whether the defendants have preserved the confidentiality of the privileged e-mails by limiting their dissemination only to

employees with a need to know the content of the communication in order to perform their jobs effectively or to make

informed decisions concerning, or affected by, the subject matter of the communication.

B. Whether the circumstances presented in this case warrant application of the “at issue” waiver doctrine-i.e., whether the

defendants’ assertion of facts in defense of the claims against them in this case has resulted in the involuntary forfeiture of

protection from disclosure of matters pertinent to the defenses asserted.

(Item 183).

At oral argument on May 14, the court limited discussion to the waiver issue as framed by the Second Circuit in its remand

order-i.e., whether the distribution of disputed e-mail communications to others within the Sheriff’s Department resulted in

waiver. Having considered the matters presented in the briefs and during oral argument in light of the circuit court’s specific

directive on remand, the court will limit its ruling accordingly.

2

As the Second Circuit noted in its January 3, 2007 decision, “[a]t least in civil litigation between a government agency and private

litigants, the government’s claim to the protections of the attorney-client privilege is on a par with the claim of an individual or a

corporate entity.” In re County of Erie, 473 F .3d at 419.

4

Pritchard v. County of Erie, Not Reported in F.Supp.2d (2007)
	  
5

 
 Pritchard v. County of Erie, Not Reported in F.Supp.2d (2007)

KeyCite Red Flag - Severe Negative Treatment Mandamus Granted, Order Vacated by In re County of Erie, 2nd Cir.(N.Y.), October 14, 2008
2007 WL 3232096 Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Adam PRITCHARD, et al., Plaintiffs, v.
The COUNTY OF ERIE, et al., Defendants.
No. 04-CV-00534C. | Oct. 31, 2007.
Attorneys and Law Firms
Alexandra C. Warren, Charles Joseph Laduca, Cuneo Gilbert & Laduca, LLP, Washington, DC, Bruce E. Menken, Beranbaum Menken Ben-Asher & Bierman LLP, Alexander E. Barnett, The Mason Law Firm, LLP, New York, NY, David G. Jay, Buffalo, NY, Elmer R. Keach, III, Law Offices of Elmer Robert Keach III, Amsterdam, NY, for Plaintiffs.
Frank T. Gaglione, Frank T. Gaglione, P.C., Amherst, NY, Kristin Klein Wheaton, Assistant County Attorney, James Paul Domagalski, Hiscock & Barclay LLP, Thomas C. D‘Agostino, Mattar, D’Agostino & Gottlieb, LLP, Buffalo, NY, for Defendants.
Opinion
JOHN T. CURTIN, United States District Judge.
*1 On June 12, 2007, this court issued an order denying plaintiffs’ motion to compel the production of privileged e-mail communications between an Assistant Erie County Attorney and employees of the Erie County Sheriff’s Department, finding that the privilege had not been waived (Item 199). Plaintiffs have moved for reconsideration of this ruling, pursuant to Rule 60 of the Federal Rules of Civil Procedure (see Item 200). Oral argument was heard on October 30, 2007.
For the reasons that follow, plaintiffs’ motion is granted.
BACKGROUND
The factual background of the protracted discovery dispute at hand is set forth at some length in the court’s previous orders, and will not be repeated here. Suffice it to state that, upon receiving notice of the decision in In re

County of Erie, 473 F.3d 413 (2d Cir.2007), this court directed briefing and argument to determine the issue left undecided by the Second Circuit in its remand order-specifically, “whether the distribution of some of the disputed e-mail communications to others within the Erie County Sheriff’s Department constituted a waiver of the attorney-client privilege.” Id. at 423. After receiving and reviewing the parties’ initial submissions outlining their positions on waiver, this court issued a subsequent order directing the parties to submit supplemental briefs focused on the following issues:
A. Whether the defendants have preserved the confidentiality of the ten privileged e-mails by limiting their dissemination only to employees with a need to know the content of the communication in order to perform their jobs effectively or to make informed decisions concerning, or affected by, the subject matter of the communication. Cf. Scholtisek v. Eldre Corp., 441 F.Supp.2d 459, 463-65 (W.D.N.Y.2006).
B. Whether the circumstances presented in this case warrant application of the “at issue” waiver doctrine-i.e., whether the defendants’ assertion of facts in defense of the claims against them in this case has resulted in the involuntary forfeiture of protection from disclosure of matters pertinent to the defenses asserted. Cf. John Doe Co. v. United States, 350 F.3d 299, [303] (2d Cir.2003).
(Item 183, p. 2).
At oral argument on May 14, 2007, the court limited the discussion to the “waiver by dissemination” issue, and did not hear argument on plaintiffs’ position that defendants waived the attorney client privilege by placing the facts discussed in the privileged communications at issue in the case. The court noted this limitation in its June 12, 2007 order, and also noted its intent to limit its ruling accordingly (see Item 199, p. 5 n. 1).
Plaintiffs now ask the court to reconsider this ruling, and urge the court to take up the “at issue” waiver argument.
DISCUSSION
1. Rule 60(b) The relevant portions of Rule 60(b) provide that “upon such terms as are just, the court may relieve a party ... from a final judgment [or] order ... for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from
1

Pritchard v. County of Erie, Not Reported in F.Supp.2d (2007)

the operation of the judgment.” Fed.R.Civ.P. 60(b); see Mendell In Behalf of Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir.1990). Motions under Rule 60(b) are addressed to the sound discretion of the district court and are generally granted “only upon a showing of exceptional circumstances.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.1986), quoted in Scherer v. City of New York, 2007 WL 2710100, at *4 (S.D.N.Y. September 7, 2007).
*2 Under Rule 60(b), reconsideration of a prior order is proper where “the moving party can point to controlling decisions or data that the court overlooked-matters in other words, that might reasonably be expected to alter the conclusion reached by the court.” Schrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995); see also New York v. Solvent Chem. Co., 235 F.Supp.2d 238, 239-40 (W.D.N.Y.2002) (quoting Schrader, 70 F.3d at 257). “The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or to prevent manifest injustice.” United States v. Tenzer, 213 F.3d 34, 39 (2d Cir.2000). “[A] motion for reconsideration is not to be used as a vehicle for wasteful repetition of arguments already briefed, considered, and decided.” Solvent Chem. Co., 235 F.Supp.2d at 239 (citing Torf v. Metromedia Paging Services, Inc., 1996 WL 118559, at *4 (E.D.N.Y. March 5, 1996); Schonberger v. Serchuk, 742 F.Supp. 108, 119 (S.D.N.Y.1990)).
As the following discussion demonstrates, the court’s limitation of the issues raised by plaintiffs’ motion to compel overlooked pertinent facts and case law which, when considered in light of the circumstances of this case, justifies reconsideration of the June 12, 2007 ruling in order to properly address the “at issue” waiver question.
2. “At Issue” Waiver Plaintiffs contend that defendants have waived the attorney-client privilege attached to the disputed e-mails by asserting as their defense critical facts contained in those communications, and then relying on the privilege to deny plaintiffs access to those facts. Waiver of this type is often referred to as “at issue” or “implied” waiver. As explained by the Second Circuit:
It is well established doctrine that in certain circumstances a party’s assertion of factual claims can, out of considerations of fairness to the party’s adversary, result in the involuntary forfeiture of privileges for matters pertinent to the claims asserted. The loss of the privilege in these circumstances is sometimes described as implied waiver, sometimes as “at issue” waiver because it results from the party having placed a contention at issue ....

Forfeiture of this nature is justified by considerations of fairness to the adversary. In some circumstances, courts have ruled that it would be unfair for a party asserting contentions to an adjudicating authority to then rely on its privileges to deprive its adversary of access to material that might disprove or undermine the party’s contentions.
John Doe Co. v. United States, 350 F.3d 299, 302 (2d Cir.2003) (internal citations and quotations omitted).

The determination of whether an “at issue” waiver has occurred is “a vexing exercise for a court.” Trudeau v. New York State Consumer Protection Bd., 237 F.R.D. 325, 340 (N.D.N.Y.2006). In attempting to facilitate this troublesome analysis, courts within the Second Circuit have approached the inquiry in various ways. Most commonly, the courts have applied the test first enunciated in Hearn v. Rhay, 68 F.R.D. 574 (E.D.Wash.1975), which asks whether: (1) the assertion of the privilege was a result of some affirmative act, such as filing suit or pleading in response to a claim; (2) through the affirmative act, the asserting party has put the protected information at issue by making it relevant to the case; and (3) the application of the privilege would have denied the opposing party access to information vital to the defense. Id. at 581; see also United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 39 (1991) (defendant’s invocation of “good-faith” defense to securities fraud charge placed knowledge of the law in issue, making conversations with counsel regarding legality of his conduct directly relevant in determining element of intent); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 1995 WL 598971, at *3 (S.D.N.Y. October 11, 1995) (applying Hearn factors to find waiver based on assertion of “reliance on advice of counsel” defense to claims of fraud and conversion arising out of financing of oil trading program). As the court in Bank Brussels Lambert observed:

*3 Cases where courts have found a

waiver of privilege based on the “at

issue” doctrine exhibit several

common factors: (1) the very

subject

of

privileged

communications [is] critically

relevant to the issue to be litigated,

(2) there [is] a good faith basis for

believing such essential privileged

communications exist[ ], and (3)

there [is] no other source of direct

proof on the issue.

Bank Brussels Lambert, 1995 WL 598971, at *5 (quoting Standard Chartered Bank PLC v. Ayala Int’l Holdings, 111 F.R.D. 76, 83 (S.D.N.Y.1986)) (internal quotation marks omitted).
2

Pritchard v. County of Erie, Not Reported in F.Supp.2d (2007)

The Second Circuit further advised in John Doe Co. that, “because the [forfeiture] doctrine is rooted in fairness we have also cautioned against broad generalizations, stressing that ‘[w]hether fairness requires disclosure ... is best decided on a case by case basis, and depends primarily on the specific context in which the privilege is asserted.’ ” John Doe Co., 350 F.3d at 302 (quoting In re Grand Jury Proceedings, 219 F.3d 175, 183 (2d Cir.2000)).
The unfairness and distortion of process [justifying a finding of waiver] has been found when one party advanced a contention to a decisionmaker, such as a court or jury, while denying its adversary access to privileged materials which might have been used to rebut the privilege holder’s contention. The crucial issue is not merely some connection to a judicial process but rather the type of unfairness 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.
Id. at 306.
The Hearn opinion itself is instructive. Hearn involved a prison inmate’s claim, pursuant to 42 U.S.C. § 1983, that his confinement in the mental health unit of the Washington State Penitentiary violated his constitutional rights under the due process clause and the Eighth Amendment. The defendant prison officials raised the affirmative defense of qualified immunity, claiming good faith reliance on the legality of their conduct. To refute this defense, the plaintiff sought discovery of legal advice rendered by the state attorney general relating to plaintiff’s confinement. The court found that this set of circumstances placed directly in issue the defendants’ communications with their attorneys that related to, among other things, the prison officials’ knowledge of whether their conduct violated the plaintiff’s constitutional rights, and that the need for this information outweighed the policy behind the attorney-client privilege. Hearn, 68 F.R.D. at 580-81. According to the court:
[T]he content of defendant’s communications with their attorney is inextricably merged with the elements of plaintiff’s case and

defendants’ affirmative defense. These communications are not incidental to the case; they inhere in the controversy itself, and to deny access to them would preclude the court from a fair and just determination of the issues. To allow assertion of the privilege in this manner would pervert its essential purpose and transform it into a potential tool for concealment of unconstitutional conduct behind a veil of confidentiality. Under these circumstances, the benefit to be gained from disclosure far outweighs the resulting injury to the attorney-client relationship. The privilege should not apply.
*4 Id. at 582.
While recognizing the resistance on the part of some courts to give Hearn an expansive reading, see, e.g., Allen v. West Point-Pepperell Inc., 848 F.Supp. 423, 429 (S.D.N.Y.1994); Remington Arms Co. v. Liberty Mut. Ins. Co., 142 F.R.D. 408, 413-15 (D.Del.1992), this court nonetheless finds the reasoning in Hearn compelling in light of the very similar circumstances presented. Like the plaintiff in Hearn, the plaintiffs in this case challenge the constitutionality of prison officials’ conduct and, like the defendants in Hearn, the prison officials have responded by pleading qualified immunity, arguing that their conduct was appropriate under the law.
Somewhat more specifically, plaintiffs claim in this case that the Sheriff’s Department’s policy for searching inmates and detainees authorized invasive strip searches without regard to individualized suspicion or the severity of the crime charged. The prison officials respond that there was no such policy in place, or that the policy that was in place authorized searches of individual detainees in accordance with constitutional requirements. Defendants also claim qualified immunity from suit based on “an objectively reasonable belief that their actions were lawful and not in violation of any of plaintiff’s clearly established constitutional rights” (Item 3, ¶ 22; Item 4, ¶ 39).
When plaintiffs sought discovery related to the County’s policy, the prison officials asserted privilege with respect to communications they had with counsel, which took place during the relevant time period, about the legality of the policy. This affirmative conduct on the part of prison officials-i.e., pleading conduct in conformity with the law, and then asserting privilege to protect from disclosure facts that might disprove this contention-has placed the
3

Pritchard v. County of Erie, Not Reported in F.Supp.2d (2007)

advice rendered by defendants’ counsel about the legality of the strip search policy directly in issue in the case. As stated in Hearn:
[D]efendants invoked the privilege in furtherance of an affirmative defense they asserted for their own benefit; through this affirmative act they placed the protected information at issue, for the legal advice they received is germane to the qualified immunity defense they raised; and one result of asserting the privilege has been to deprive plaintiff of information necessary to ‘defend’ against defendants’ affirmative defense, for the protected information is also germane to plaintiff’s burden of proving malice or unreasonable disregard of his clearly established constitutional rights.
Hearn, 68 F.R.D. at 581.
Here, defendants have invoked the privilege in furtherance of their defense that the County’s policy for conducting strip searches on ECHC detainees or ECCF inmates was at all times implemented in accordance with constitutional requirements. The advice they received from counsel in this regard is germane not only to this defense, but also to plaintiffs’ burden of proving that the policy (or prison officials’ implementation of the policy) violated the Fourth Amendment. See Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir.1994) (“Advice is not in issue merely because it is relevant, and does not necessarily become in issue merely because the attorney’s advice might affect the client’s state of mind in a relevant manner. The advice of counsel is placed in issue where the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney client communication.”).
*5 This conclusion is supported by the deposition testimony of defendants Livingston and Gipson. For example, at his December 5, 2005 deposition, defendant Livingston was asked by plaintiffs’ counsel about the circumstances precipitating the drafting of a memo dated August 27, 2003, which was produced during document discovery. The memo was prepared by Livingston and signed by Gipson. It advises “Supervisors, Intake and Booking Deputies and Officers” in the Jail Management Division “that routine or universal strip searches of newly admitted inmates has been found to be unconstitutional. Therefore: effective immediately, no routine or universal strip searches are to be administered to any newly

admitted inmate.” (Item 177, Ex. G). Livingston explained that he and Gipson “were having continued discussions with the County Attorney’s Office regarding the changes in court cases and how they impacted-how those changes impacted what we were doing at the holding center.” (Id., Ex. H, at 45). Gipson testified at his April 6, 2006 deposition that “Krist[i]n Machelor was in the process of being involved in the rewrite of the strip search policy. And, she was doing some things, and we were looking at it from our end.” (Id., Ex. J, at 29-30). Read as a whole, this testimony clearly indicates defendants’ reliance on privileged communications to support the contention that the strip search policy implemented at the ECHC and the ECCF was lawful.
Considering all of these circumstances, the conclusion is inescapable that the factual content of the disputed e-mail communications has become inextricably merged with defendants’ position that the County’s strip search policy was lawful or was implemented under a good faith belief as to its legality, as well as with the elements of plaintiffs’ § 1983 claim that the policy as applied violated their constitutional rights. This information is critically relevant to the controversy itself, and there has been no showing to indicate the existence of any other source of direct proof on the issue. To deny plaintiffs access to the information would undermine the essential purpose of the privilege by “transform[ing] it into a potential tool for concealment of unconstitutional conduct behind a veil of confidentiality.” Hearn, 68 F.R.D. at 582. As such, the benefit to be gained from disclosure of the communications far outweighs any resulting injury to the attorney-client relationship.
Based on this analysis, the court finds that the defendants have waived the attorney-client privilege with respect to the disputed e-mails by placing the information in those communications at issue in the litigation. The court also finds that, because this protracted dispute has focused on the discoverability of these particular documents, the scope of the waiver should be limited accordingly. See McGrath v. Nassau County Health Care Corp., 204 F.R.D. 240, 245 (E.D.N.Y.2001) (having determined “at issue” waiver occurred, court must determine scope of waiver) (quoting United States v. Doe (In re Grand Jury Proceedings), 219 F.3d 175, 190 (2d Cir.2000)).
CONCLUSION
*6 For all of the reasons stated above, plaintiffs’ motion for reconsideration (Item 200) is granted, and the court finds that the attorney-client privilege has been waived with respect to the ten particular e-mail communications at issue. These documents shall be produced to plaintiffs’ counsel forthwith.
4

Pritchard v. County of Erie, Not Reported in F.Supp.2d (2007)

As discussed during oral argument, plaintiffs seek court approval of their request for the deposition of a designated County employee, noticed pursuant to Fed.R.Civ.P. 30(b)(6), to provide testimony with respect to plaintiffs’ demand for production of additional e-mail communications. On or before November 30, 2007, defense counsel shall provide the court and plaintiffs’ counsel with a list of documents produced or withheld in response to this demand, along with an appropriate privilege log and any other materials deemed necessary to

assist the court in ruling on the deposition application. Plaintiffs’ responding affidavit shall be filed on or before December 7, 2007. Upon review of these submissions, the court will issue an order addressing plaintiffs’ deposition request and setting a schedule for further proceedings in the case.
So ordered.
	  

5

 
 Case 1:04-cv-00534-RJA-HBS Document 294 Filed 05/23/12 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

____________________________________

:

ADAM PRITCHARD and

:

EDWARD ROBINSON, both individually :

and on behalf of a certified class of

:

similarly situated individuals,

:

:

Plaintiffs,

:

:

v.

:

:

THE COUNTY OF ERIE, et. al.,

:

:

Defendants.

:

___________________________________ :

No. 04-CV-0534 (RJA/HBS)

PLAINTIFF’S SUBMISSION REGARDING PROCEDURAL POSTURE OF PRESENT ACTION

The Court instructed the parties to provide a joint submission regarding the procedural

posture of this action, and to try and reach agreement regarding what motions should be filed.

The Plaintiffs have been unable to reach an agreement in this regard, their best efforts

notwithstanding. In their letter to Plaintiffs’ counsel representing their effort to “confer,”

attached hereto as Exhibit A, and in their submission to the Court, the Defendants maintain that it

is they, rather than the Plaintiffs, that should be able to dictate the terms by which the Court

considers their conduct in this action. The Defendants also, by claiming that the Plaintiffs are

engaging “in a blatant attempt to avoid the implications of the Florence decision,” ignore the

differences in their admissions procedures compared to the limited factual scenario addressed by

the United States Supreme Court. Florence does not provide corrections officials with carte

blanche to do as they please, and other Federal courts have ruled that group strip searches violate

the constitutional rights of pre-trial detainees. The Defendants essentially propose that the Court

1

Case 1:04-cv-00534-RJA-HBS Document 294 Filed 05/23/12 Page 2 of 3
should not consider the totality of their conduct, including their admitted procedure of conducting group strip searches, but should instead give the Plaintiffs no ability to raise this issue.
The Plaintiffs have acknowledged the impact of the Florence decision on the strip search claims raised in this litigation, and do not plan to burden the Court’s time contesting that the bulk of the allegations raised by the Class have been disposed of by this binding precedent. Instead, the Plaintiffs will present the Court with one concise legal issue: Can corrections officials, in the absence of any justification, conduct humiliating group strip and visual cavity searches of pretrial detainees. The Plaintiffs propose that the easiest way to raise this issue would be for them to be provided with leave to file an amended complaint, which would include revised class definitions, detailing their claims of group strip searches at both the Erie County Holding Center and the Erie County Correctional Facility. (See, Exhibit B, Email from Keach to Domagalski). The Defendants could then file a Rule 12(b)(6) or Rule 12(c) motion regarding this amended complaint, which would squarely address the legal issue detailed above. Should the Court grant the Defendants’ motion, that would obviate the need for decertification of the class or a factually complicated motion for summary judgment. Should the Court deny the Defendants’ motion, than this litigation can proceed accordingly.
This is exactly the procedure to which class counsel has agreed in other strip search litigation, including a state wide class action against the State of West Virginia. This procedure will efficiently address the central issue remaining in this litigation absent the need for a voluminous, and contested, summary judgment motion addressing thousands of pages of deposition transcripts and other documents, or feuding over potentially tangential issues such as decertification or continuing discovery. The Plaintiffs request that the Court enter a schedule
2

Case 1:04-cv-00534-RJA-HBS Document 294 Filed 05/23/12 Page 3 of 3

allowing for the Plaintiffs to file an amended complaint, and then detailing a briefing schedule

for the Defendants to file a motion against that complaint.

Respectfully Submitted By:

/s Elmer Robert Keach, III

Dated: May 23, 2012

__________________________________ Elmer Robert Keach, III, Esquire LAW OFFICES OF ELMER ROBERT
KEACH, III, PC 1040 Riverfront Center P. O. Box 70 Amsterdam, NY 12010 Telephone: 518.434.1718 Telecopier: 518.770.1558 Electronic Mail: bobkeach@keachlawfirm.com

ATTORNEY FOR PLAINTIFFS

3

 
 Case 1:04-cv-00534-RJA-HBS Document 289 Filed 05/14/12 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

____________________________________

:

ADAM PRITCHARD and

:

EDWARD ROBINSON, both individually :

and on behalf of a certified class of

:

similarly situated individuals,

:

:

Plaintiffs,

:

:

v.

:

:

THE COUNTY OF ERIE, et. al.,

:

:

Defendants.

:

___________________________________ :

No. 04-CV-534 (RJA/HBS)

PLAINTIFFS’ SUBMISSION REGARDING THE IMPACT OF THE FLORENCE DECISION ON THE PENDING CLASS ACTION

Pursuant to the Court’s instructions, the Plaintiffs and the Certified Class provide the

Court with this brief submission regarding the impact of Florence v. Board of Chosen

Freeholders, 132 S.Ct. 1510 (2012), on the present litigation. The Plaintiffs acknowledge, and

are willing to stipulate, that the Supreme Court’s decision in Florence has a major effect on this

litigation and the claims raised by the certified class. The strip search regimen put in place by

the Erie County Sheriff’s Department falls squarely within the confines of the Florence decision,

with one major exception. Specifically, Erie County only strip searched individuals that were

admitted into the Erie County Holding Center (“ECHC”) and Erie County Correctional Facility

(“ECCF”) after they had been arraigned and held for a significant period of time to enable them

to post bail. The strip searches in question were done when individuals entered the general jail

population, similar to those addressed in Florence.

1

Case 1:04-cv-00534-RJA-HBS Document 289 Filed 05/14/12 Page 2 of 4
The one issue for the Court to address now, however, is not insignificant. Unlike the searches addressed in Florence, Erie County’s searches where done in a group setting. In the ECHC, class members were searched in groups of three in a shower area. In the ECCF, class members were searched in larger groups in a large common room. One class member deposed in this case was strip searched in front of two other women while she menstruated. Two former Erie County employees admit conducting these searches in groups. Another District Court has found that group strip searches are unconstitutional even after the Ninth Circuit ruled, like Florence, that blanket searches of misdemeanor pre-trial detainees were permissible. See, Roadhouse v. Las Vegas Metropolitan Police Dep’t, No. 2:09-CV-33, 2010 WL 3154550, * 2 (August 6, 2010, D. Nevada) (“The second contention underlying the Fourth Amendment claim states a plausible right to relief. The privacy afforded a detainee during a strip search may be a significant factor in determining the procedure’s constitutionality”).
The Supreme Court expressly limited its holding to the exact facts addressed in the Florence action, and further detailed that the holding did not address “concerns about instances of officers engaging in intentional humiliation and other abusive practices.” Florence, 132 S.Ct. at 1523. The concurrences from Chief Justice Roberts and Justice Alito further detailed that District Courts should carefully consider the Florence holding to “leave open the possibility of exceptions.” Id. (concurring opinion) (Robert, CJ). The Florence decision does not provide corrections officials with carte blanche to do as they please. Instead, it is addressed to a limited set of circumstances that did not consider the legality of group strip searches. For most class members, being strip searched legally is bad enough; being forced to disrobe and manipulate your genitals in front of other detainees in the absence of any privacy is the hallmark of unreasonableness – especially when one is charged with a misdemeanor or other minor crime.
2

Case 1:04-cv-00534-RJA-HBS Document 289 Filed 05/14/12 Page 3 of 4

The Plaintiffs note for the Court that even state prisons, which house individuals convicted of

serious felony offenses, many of which involve violence, provide inmates with privacy when

conducting otherwise permissible strip searches.

The Plaintiffs had hoped to work with the Defendants to address the most direct way,

procedurally, to get these issues before the Court. Rather than work with the Plaintiffs in this

regard, the Defendants chose to make lengthy arguments, many of which are unnecessary, in the

absence of an appropriate record or motion practice. The Plaintiffs will not reciprocate. Instead,

the Plaintiffs seek a conference with the Court to address procedural issues in this action, and the

mechanism by which the remaining issues in this case can be promptly and efficiently considered

by the Court. The Plaintiffs respectfully suggest that a short period of discovery, addressed only

to group searches, followed by cross-motions for leave to file an amended complaint, for leave to

amend the class definition, and for summary judgment is the appropriate course that this action

should take going forward.

The Plaintiffs did not consider the Court’s request for a brief submission on these issues

to be a call for full motion submissions. The Plaintiffs respectfully request that any action taken

by the Court be the subject of appropriate motion practice to ensure them a full opportunity to be

heard, and a full factual record. The Plaintiffs thank the Court for its consideration of this

submission.

Respectfully Submitted By:

/s Elmer Robert Keach, III

Dated: May 14, 2012

______________________________ Elmer Robert Keach, III LAW OFFICES OF ELMER ROBERT
KEACH, III, PC 1040 Riverfront Center P. O. Box 70

3

Case 1:04-cv-00534-RJA-HBS Document 289 Filed 05/14/12 Page 4 of 4 Amsterdam, NY 12010 Telephone: 518.434.1718 Telecopier: 518.770.1558 Electronic Mail: bobkeach@keachlawfirm.com LEAD COUNSEL FOR PLAINTIFFS AND THE CERTIFIED CLASS
4

 
 Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 1 of 45
CASREF,HBS,HBS2
U.S. DISTRICT COURT U.S. District Court, Western District of New York (Buffalo) CIVIL DOCKET FOR CASE #: 1:04−cv−00534−RJA−HBS

Pritchard et al v. The County of Erie et al Assigned to: Hon. Richard J. Arcara Referred to: Hon. Hugh B. Scott Cause: 42:1983 Civil Rights Act
Plaintiff
Adam Pritchard

Date Filed: 07/21/2004 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alexandra C. Warren Cuneo Gilbert &LaDuca, LLP 106−A S. Columbus Street Alexandria, VA 22314 Email: awarren@cuneolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce E. Menken Beranbaum Menken Ben−Asher &Bierman LLP 80 Pine Street 32nd Floor New York, NY 10005 212−509−1616 Fax: 212−509−8088 Email: bmenken@bmbblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Joseph LaDuca Cuneo Gilbert &LaDuca LLP 8120 Woodmont Avenue Suite 810 Bethesda, MD 20814 202−789−3960 Fax: 202−789−1813 Email: charlesL@cuneolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David G. Jay 69 Delaware Avenue Suite 1103 Buffalo, NY 14202−3811 (716) 856−6300 Fax: (176) 856−6100 Email: davidgjay@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elmer R. Keach , III Law Offices of Elmer Robert Keach III 1040 Riverfront Center P. O. Box 70 Amsterdam, NY 12010 (518) 434−1718 Fax: 518.770.1558 Email: bobkeach@keachlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 2 of 45

Nicholas A. Migliaccio Whitfield Bryson &Mason LLP 1625 Massachusetts Avenue, NW Suite 605 Washington, DC 20036 202−429−2290 Fax: 202−429−2294 Email: nmigliaccio@wbmllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander E. Barnett The Mason Law Firm, LLP 1120 Avenue of the Americas Suite 4019 New York, NY 10036 516−740−7773 Fax: 516−740−7873 Email: abarnett@yourlawyer.com TERMINATED: 11/10/2009

Bethany B. Schumann−McGhee 2465 Riverfront Center Amsterdam, NY 12010 Email: bethany@keachlawfirm.com TERMINATED: 02/19/2010

Brendan S. Thompson Cuneo Gilbert &LaDuca, LLP 8120 Woodmont Avenue Suite 810 Bethesda, MD 20814 202−789−3960 Fax: 202−789−1813 Email: brendant@cuneolaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Edward Robinson

represented by Alexandra C. Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Joseph LaDuca (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David G. Jay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elmer R. Keach , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 3 of 45

Nicholas A. Migliaccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander E. Barnett (See above for address) TERMINATED: 11/10/2009

Bethany B. Schumann−McGhee (See above for address) TERMINATED: 02/19/2010

Brendan S. Thompson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Julenne Tucker both individually and on behalf of a class of others similarly situated

represented by Alexandra C. Warren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David G. Jay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elmer R. Keach , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas A. Migliaccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander E. Barnett (See above for address) TERMINATED: 11/10/2009

Bethany B. Schumann−McGhee (See above for address) TERMINATED: 02/19/2010

Brendan S. Thompson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Charles Joseph LaDuca (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 4 of 45

The County of Erie

represented by Frank T. Gaglione Frank T. Gaglione, P.C. 5110 Main Street Suite 218 Amherst, NY 14221 716−839−1465 Fax: 716−839−1589 Email: ftgaglione@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle M. Parker Erie County Department of Law 95 Franklin Street 16th Floor Buffalo, NY 14202 716−858−2209 Email: parkerm3@erie.gov LEAD ATTORNEY

James Paul Domagalski Hiscock &Barclay LLP 1100 MTCenter Buffalo, NY 14203 716−566−1510 Fax: 716−566−4003 Email: jdomagalski@hblaw.com ATTORNEY TO BE NOTICED

Kristin Klein Wheaton Goldberg Segalla LLP 665 Main Street Suite 400 Buffalo, NY 14203 (716) 566−5497 Fax: (716) 566−5401 Email: kleinwheaton@ecc.edu TERMINATED: 11/15/2010

Michael C. Driscoll Hiscock &Barclay LLP 1100 MTCenter Three Fountain Plaza Buffalo, NY 14203 716−842−4611 Fax: 716−842−5376 Email: mdriscoll@mandtbank.com TERMINATED: 07/25/2005

Thomas F. Kirkpatrick , Jr. Erie County Department of Law 95 Franklin Street Room 1634 Buffalo, NY 14202 Email: kirkpatt@erie.gov ATTORNEY TO BE NOTICED

Defendant
Patrick M. Gallivan both individually and in his official capcity as Sheriff of the County of Erie

represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle M. Parker

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 5 of 45

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Paul Domagalski (See above for address) ATTORNEY TO BE NOTICED

Kristin Klein Wheaton (See above for address) TERMINATED: 11/15/2010

Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005

Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED

Defendant
Timothy . Howard both individually and as Undersheriff of the County of Erie

represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle M. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Paul Domagalski (See above for address) ATTORNEY TO BE NOTICED

Kristin Klein Wheaton (See above for address) TERMINATED: 11/15/2010

Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005

Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED

Defendant
Donald J. Livingston both individually and as Acting Suprintendent of the Erie County Correctional Facility

represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle M. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Paul Domagalski (See above for address) ATTORNEY TO BE NOTICED

Kristin Klein Wheaton (See above for address)

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TERMINATED: 11/15/2010

Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005

Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED

Defendant
Robert Huggins both individually and as Deputy Superintendent of the Erie County Correctional Facility

represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Paul Domagalski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle M. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristin Klein Wheaton (See above for address) TERMINATED: 11/15/2010

Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005

Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED

Defendant
H. McCarthy Gibson both individually and as Superintendent of the Erie County Holding Center

represented by Thomas C. D'Agostino Mattar, D'Agostino &Gottlieb, LLP 17 Court Street Suite 600 Buffalo, NY 14202−3294 716−856−4022 Fax: 716−856−5814 Email: attorney@mdg−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Schapp Mattar, D'Agostino &Gottlieb, LLP 17 Court Street Suite 600 Buffalo, NY 14202−3294 716−856−4022 Fax: 716−856−5814 Email: jschapp@mdg−law.com ATTORNEY TO BE NOTICED

Kristin Klein Wheaton (See above for address) TERMINATED: 03/09/2010

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Counter Claimant Timothy . Howard TERMINATED: 06/23/2005
Cross Claimant Robert Huggins TERMINATED: 06/23/2005
Cross Claimant H. McCarthy Gibson TERMINATED: 06/23/2005
Cross Claimant County of Erie TERMINATED: 06/23/2005
Cross Claimant Donald J. Livingston TERMINATED: 06/23/2005
Cross Claimant Patrick M. Gallivan TERMINATED: 06/23/2005

represented by Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED

V. Cross Defendant H. McCarthy Gibson TERMINATED: 06/23/2005
Cross Defendant County of Erie TERMINATED: 06/23/2005
Cross Defendant Patrick M. Gallivan TERMINATED: 06/23/2005
Cross Defendant Timothy . Howard TERMINATED: 06/23/2005
Cross Defendant Donald Livingston TERMINATED: 06/23/2005
Cross Defendant

represented by Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 8 of 45

Robert Huggins TERMINATED: 06/23/2005

Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED

Cross Claimant
Patrick M. Gallivan both individually and in his official capcity as Sheriff of the County of Erie TERMINATED: 06/23/2005

represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005

Cross Claimant
Timothy . Howard both individually and as Undersheriff of the County of Erie TERMINATED: 06/23/2005

represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005

Cross Claimant
Robert Huggins both individually and as Deputy Superintendent of the Erie County Correctional Facility TERMINATED: 06/23/2005

represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005

Cross Claimant
Donald J. Livingston both individually and as Acting Suprintendent of the Erie County Correctional Facility TERMINATED: 06/23/2005

represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005

Cross Claimant
The County of Erie TERMINATED: 06/23/2005

represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005

Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED

V. Cross Defendant

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 9 of 45

H. McCarthy Gibson both individually and as Superintendent of the Erie County Holding Center TERMINATED: 06/23/2005

Cross Claimant
H. McCarthy Gibson both individually and as Superintendent of the Erie County Holding Center TERMINATED: 06/23/2005

represented by Thomas C. D'Agostino (See above for address) ATTORNEY TO BE NOTICED

V. Cross Defendant Patrick M. Gallivan both individually and in his official capcity as Sheriff of the County of Erie TERMINATED: 06/23/2005
Cross Defendant Timothy . Howard both individually and as Undersheriff of the County of Erie TERMINATED: 06/23/2005
Cross Defendant Robert Huggins both individually and as Deputy Superintendent of the Erie County Correctional Facility TERMINATED: 06/23/2005
Cross Defendant Donald J. Livingston both individually and as Acting Suprintendent of the Erie County Correctional Facility TERMINATED: 06/23/2005
Cross Defendant The County of Erie TERMINATED: 06/23/2005

represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005
represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005
represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005
represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Driscoll (See above for address) TERMINATED: 07/25/2005
represented by Frank T. Gaglione (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Driscoll (See above for address)

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TERMINATED: 07/25/2005
Thomas F. Kirkpatrick , Jr. (See above for address) ATTORNEY TO BE NOTICED
Cross Defendant Julenne Tucker both individually and on behalf of a class of others similarly situated

Date Filed 07/21/2004
07/21/2004 08/20/2004
08/20/2004 09/16/2004 09/16/2004
10/07/2004 10/21/2004 12/13/2004 12/21/2004
01/03/2005 01/31/2005 01/31/2005

# Docket Text

1 COMPLAINT against Patrick M. Gallivan, H. McCarthy Gibson, Timothy. Howard, Robert Huggins, Donald J. Livingston, The County of Erie ( Filing fee $ 150 receipt number 12373.), filed by Adam Pritchard, Edward Robinson, Julenne Tucker ; Jury trial demanded(DZ, ) (Entered: 07/23/2004)

Summons Issued as to Patrick M. Gallivan, H. McCarthy Gibson, Timothy. Howard, Robert Huggins, Donald J. Livingston, The County of Erie. (DZ, ) (Entered: 07/23/2004)

2 STIPULATION AND ORDER granting all defendants an extension of time to answer until 9/16/04; plaintiffs' time to move for class certification will be extended by 30 days. Signed by Hon. John T. Curtin on 8/20/04. (DZ, ) (Entered: 08/24/2004)

Answer due date updated as to all defendants to 9/16/04 (DZ, ) (Entered: 08/24/2004)

3 ANSWER to Complaint with Jury Demand, CROSSCLAIM against H. McCarthy Gibson by Patrick M. Gallivan, Timothy. Howard, Robert Huggins, Donald J. Livingston, The County of Erie.(Wheaton, Kristin) (Entered: 09/16/2004)

4 ANSWER to Complaint with Jury Demand, CROSSCLAIM against Patrick M. Gallivan, Timothy. Howard, Robert Huggins, Donald J. Livingston, The County of Erie, Julenne Tucker by H. McCarthy Gibson. (Attachments: # 1 Certificate of Service)(D'Agostino, Thomas) (Entered: 09/16/2004)

NOTICE of Hearing: Status Telephone Conference set for 10/25/2004 11:00 AM before Hon. John T. Curtin. (JEC) (Entered: 10/07/2004)

TAKE NOTICE that the Meeting scheduled in this matter for 10/25/2004 is adjourned generally. A new meeting date will be set shortly. (JEC) (Entered: 10/21/2004)

5 **RESCINDED per Order item # 162** ORDER REFERRING CASE to Magistrate Judge Hugh B. Scott. Signed by Hon. Richard J. Arcara on 12/09/2004. (JEC) Modified on 1/9/2007 (DZ, ). (Entered: 12/13/2004)

6

STIPULATION AND ORDER

Plaintiffs' Motion for class certification due by 2/18/2005. Signed by Hon. Hugh B. Scott on 12/20/2004. (DRH) (Entered: 12/21/2004)
7 NOTICE of Appearance by David Gerald Jay on behalf of Adam Pritchard, Edward Robinson, Julenne Tucker (DZ, ) (Entered: 01/03/2005)
8 STATUS REPORT and Request for Case Management Conference with the Court by Adam Pritchard, Edward Robinson, Julenne Tucker. (Keach, Elmer) (Entered: 01/31/2005)
E−Filing Notification: 8 STATUS REPORT (Keach, Elmer) **Reminder that letters are not to be e−filed unless directed to do so by the Court** (DZ, ) (Entered: 02/01/2005)

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02/03/2005

9

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

02/11/2005 02/11/2005 02/23/2005

Scheduling Conference set for 2/23/2005, 11:00 AM, before Hon. Hugh B. Scott. The date for class certification motion (see Docket No. 6 ), is held in abeyance pending this scheduling conference. Signed by Hon. Hugh B. Scott on 2/3/2005. (DRH) (Entered: 02/03/2005)

10 NOTICE of Appearance by Frank T. Gaglione on behalf of Timothy. Howard, Donald J. Livingston, Robert Huggins, Patrick M. Gallivan, Timothy. Howard, Robert Huggins, Donald J. Livingston, The County of Erie, Patrick M. Gallivan, Timothy. Howard, Robert Huggins, Donald J. Livingston, The County of Erie, The County of Erie, Patrick M. Gallivan (Gaglione, Frank) (Entered: 02/11/2005)

11 NOTICE of Appearance by Michael C. Driscoll on behalf of Timothy. Howard, Donald J. Livingston, Robert Huggins, Patrick M. Gallivan, Timothy. Howard, Robert Huggins, Donald J. Livingston, The County of Erie, Patrick M. Gallivan, Timothy. Howard, Robert Huggins, Donald J. Livingston, The County of Erie, The County of Erie, Patrick M. Gallivan (Driscoll, Michael) (Entered: 02/11/2005)

12

HONORABLE HUGH B. SCOTT

TEXT OF MINUTE ENTRY

For proceedings held before Magistrate Judge Hugh B. Scott:

David G. Jay, Esq., Elmer R. Keach, III, Esq., Jonathan Cuneo, Esq., for plaintiffs; Assistant County Attorney Kristin Klein Wheaton, Frank Gaglione, Esq., Michael Driscoll, Esq., for defendants (except Gibson); Thomas D'Agostino, Esq., for defendant Gibson.

02/23/2005

Scheduling Conference held on 2/23/2005. Cause shown for extended schedule. Scheduling Order to be entered. (DRH) (Entered: 02/23/2005)

13

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

SCHEDULING ORDER:

Join Parties/Amend Pleadings due by 6/1/2005. Discovery related to class certification due by 8/23/2005. Motion for class certification due by 8/23/2005. Responses to this motion due by 9/23/2005. Reply to this motion, if any, due by 9/30/2005. Court then determine if oral argument is necessary.

04/14/2005

Initial Settlement Conference set for 9/8/2005, 11:00 AM, before Hon. Hugh B. Scott. Motions to Compel Fact Discovery due by 3/3/2006. Fact Discovery due by 4/6/2006. Plaintiff Expert Witness ID due by 5/1/2006. Defendant Expert Witness ID due by 6/15/2006. All discovery, including expert, due by 7/3/2006. Further Pretrial Conference set for 7/11/2006, 10:00 AM, before Hon. Hugh B. Scott. Motions due by 8/15/2006. Signed by Hon. Hugh B. Scott on 2/23/2005. (DRH) (Entered: 02/23/2005)

14

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER re 13 Scheduling Order, Set Deadlines/Hearings, Set Scheduling Order Deadlines

06/23/2005

Initial Settlement Conference reset for 9/7/2005, 11:00 AM, before Hon. Hugh B. Scott. All other dates remain in place. Signed by Hon. Hugh B. Scott on 4/14/2005. (DRH) (Entered: 04/14/2005)

15

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

STIPULATION AND ORDER

Defendants stipulated to dismissing cross−claims filed against each other. Cross−Claimants H. McCarthy Gibson, County of Erie, Patrick M. Gallivan, Timothy. Howard, Donald Livingston, and Robert Huggins terminated;

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07/22/2005 07/22/2005 07/25/2005
07/27/2005
07/28/2005 07/28/2005 08/03/2005

Cross−Defendants H. McCarthy Gibson, Timothy. Howard, Robert Huggins, Donald J. Livingston, The County of Erie, and Patrick M. Gallivan terminated.So Ordered. Signed by Hon. Hugh B. Scott on 6/23/2005. (DRH) (Entered: 06/23/2005)

16 MOTION to Compel by The County of Erie, Patrick M. Gallivan, Timothy Howard, Donald Livingston and by Robert Huggins.(Domagalski, James) (Entered: 07/22/2005)

17 AFFIDAVIT re 16 MOTION to Compel by The County of Erie, Patrick M. Gallivan, Timothy Howard, Donald Livingston and by Robert Huggins. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Domagalski, James) (Entered: 07/22/2005)

18

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER re 16 MOTION to Compel by The County of Erie, Patrick M. Gallivan, Timothy Howard, Donald Livingston and filed by Robert Huggins

Plaintiffs' counsel requested a status conference to discuss discovery and the timing of the class certification motion; also, defendants have moved to compel discovery from plaintiffs (Docket No. 16 ). To discuss these issues, Status Conference set for 8/17/2005, 11:30 AM, before Hon. Hugh B. Scott; plaintiff's non−local counsel may appear by telephone. All other counsel (including plaintiffs' local counsel) are expected to appear in person.

Parties are reminded that chamber guidelines requires submission of paper courtesy copies of all motion papers to the chambers of the undersigned.

So Ordered. Signed by Hon. Hugh B. Scott on 7/25/2005. (DRH) (Entered: 07/25/2005)

19

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER re 18 Order, Set Hearings

At the request of plaintiffs' counsel, Status Conference reset for Wed., 8/3/2005, 2:00 PM, before Hon. Hugh B. Scott. Parties should be prepared to discuss (a) schedule for completing class certification discovery and class certification motion, (b) scheduling of defendants' motion to compel (Docket No. 16 ) or any other motions filed or anticipated to be filed, (c) status of claims against former Sheriff Gallivan. Since plaintiffs counsel indicated that they would be in Buffalo on Aug. 3, all counsel are expected to appear in person. So Ordered. Signed by Hon. Hugh B. Scott on 7/27/2005. (DRH) (Entered: 07/27/2005)

Test entry for technical reasons (DZ, ) (Entered: 07/28/2005)

20 NOTICE of Change of Address by James Paul Domagalski (Domagalski, James) (Entered: 07/28/2005)

21

HONORABLE HUGH B. SCOTT

TEXT OF MINUTE ENTRY

For proceedings held before Magistrate Judge Hugh B. Scott:

Elmer R. Keach, Esq., for plaintiffs; Frank Gaglione, Esq., James Domagalski, Esq., Thomas D'Agostino, Esq., Assistant County Attorney Kristin Klein Wheaton, for defendants.

Status Conference held on 8/3/2005. Parties discussed status of discovery relative to class certification motion and plaintiffs' desire to extend deadline for class certification as well as their intention to move to compel disclosure. Schedule for defendants' pending motion to compel 16 was also discussed. Plaintiffs stated that claims remain against defendant Gallivan in his individual capacity. Plaintiffs complained about the conduct of depositions, and defendants complained about ex

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08/09/2005 08/09/2005 08/10/2005 08/10/2005 08/11/2005
08/12/2005 08/12/2005

parte communication by plaintiffs' investigator with Erie County Sheriff's deputies (an investigator who was serving subpoenaes upon the deputies). Plaintiffs finally complained that they have not received correspondence sent by defense counsel to the Court. Defendants finally mentioned scheduling issues in the ongoing depositions of defendants' staff.
The Court admonished counsel to make motions to seek redress raised in this conference and in correspondence leading to this conference. Any such motions are due by 8/10/2005. The Court then will issue a scheduling Order for briefing of those motions, including a schedule for defendants' motion to compel 16 . The class certification motion deadline remains as schedule absent an motion or stipulation requesting a change.
All counsel for the parties who have not filed formal notices of appearance (including registration with ECF) must do so in order to receive notices from the Court. (DRH) (Entered: 08/03/2005)
22 MOTION to Compel or Preclude Discovery by H. McCarthy Gibson.(D'Agostino, Thomas) (Entered: 08/09/2005)
23 AFFIDAVIT re 22 MOTION to Compel or Preclude Discovery Affidavit of Thomas C. D'Agostino by H. McCarthy Gibson. (Attachments: # 1 Exhibit A# 2 Exhibit B)(D'Agostino, Thomas) (Entered: 08/09/2005)
24 AFFIDAVIT of Service for Affidavit in Support of Motion to Compel or Preclude Discovery served on All parties on August 9, 2005, filed by H. McCarthy Gibson. (D'Agostino, Thomas) (Entered: 08/10/2005)
E−Filing Error Notification: 24 AFFIDAVIT of Service (D'Agostino, Thomas) **Document to be refiled in proper format with case caption and number** (DZ, ) (Entered: 08/11/2005)
25 MOTION to Compel and for Protective Order, Leave to Intervene and Enlargement of Time by Adam Pritchard, Edward Robinson, Julenne Tucker. (Attachments: # 1 Affidavit Affirmation of Elmer Keach# 2 Exhibit Exhibit A to Keach Affirmation −− Plaintiffs' Document Request# 3 Exhibit Exhibit C to Keach Affirmation −− Defendants' Response to Document Request# 4 Exhibit Exhibit C to Keach Affirmation −− Defendant County of Erie's Answer# 5 Exhibit Exhibit D to Keach Affirmation −− Gibson Memo on Strip Searches, August 2003# 6 Exhibit Exhibit E to Keach Affirmation −− Marriott Protective Order# 7 Exhibit Exhibit F to Keach Affirmation −− Defendants' Letter regarding booking sheets# 8 Exhibit Exhibit G to Keach Affirmation −− Order in Bruce v. County of Rensselaer# 9 Exhibit Exhibit H to the Keach Affirmation −− transcript from Marriott v. County of Montgomery# 10 Exhibit Exhibit I to Keach Affirmation −− Transcript in McDaniel v. County of Schenectady# 11 Exhibit Exhibit J to Keach Affirmation −− Order in McDaniel v. County of Schenectady on booking sheets# 12 Exhibit Exhibit K to Keach Affirmation −− Protective Order in McDaniel v. County of Schenectady# 13 Exhibit Exhibit L to Keach Affirmation −− Booking Records for Edward Robinson# 14 Exhibit Exhibit M to Keach Affirmation −− County of Erie Original Privilege Log# 15 Exhibit Exhibit N to Keach Affirmation −− County of Erie Amended Privilege Log# 16 Exhibit Exhibit O to Keach Affirmation −− Depostion to Daniel Harig# 17 Exhibit Exhibit P to Keach Affirmation −− Email between counsel regarding Stanley and McNamara# 18 Exhibit Exhibit R to Keach Affirmation −− Redlined Amended Complaint# 19 Exhibit Exhibit Q to Keach Affirmation −− Intervention Complaint# 20 Exhibit Exhibit S to Keach Affirmation −− Order in McDaniel v. County of Schenectady regarding extension of class certification deadline# 21 Memorandum in Support Memorandum of Law In support of motion to compel, for protective order, for permissive intervention and enlargement of time)(Keach, Elmer) (Entered: 08/11/2005)
Document No. 25 Motion to Compel, Affirmation with Exhibits and Memorandum filed without proof of service. (SG, ) (Entered: 08/12/2005)
26 CERTIFICATE OF SERVICE by H. McCarthy Gibson re 23 Affidavit (D'Agostino, Thomas) (Entered: 08/12/2005)

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08/12/2005 08/12/2005 08/15/2005

27 STIPULATION re 13 Scheduling Order,,,, Set Deadlines/Hearings,,,, Set Scheduling Order Deadlines,,, extending time for Plaintiffs to move for class certification by Adam Pritchard, Edward Robinson, Julenne Tucker. (Keach, Elmer) (Entered: 08/12/2005)

E−Filing Error Notation: 27 STIPULATION (Keach, Elmer) **document to be re−filed to comply with signature block requirements* (DZ, ) (Entered: 08/15/2005)

28

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER

Regarding defendants' motions (Docket Nos. 16 , 22 ) and plaintiffs' motion (Docket No. 25 ), Responses due by 8/17/2005; Replies due by 9/1/2005. Oral Argument set for Fri., 9/16/2005, 11:00 AM, before Hon. Hugh B. Scott. Plaintiffs are to file proof of service for their motion.

Pretrial Conference also set for Fri., 9/16/2005, 11:00 AM, before Hon. Hugh B. Scott.

Parties stipulation extending time to file motion to certify class (Docket No. 27 ) is granted; that motion is due by 10/21/2005.

08/17/2005
08/17/2005 08/17/2005 08/17/2005 08/17/2005 08/17/2005 08/18/2005

So Ordered. Signed by Hon. Hugh B. Scott on 8/15/2005. (DRH) (Entered: 08/15/2005)
29 MEMORANDUM in Opposition re 25 MOTION to Compel and for Protective Order, Leave to Intervene and Enlargement of Time In Opposition To Plaintiffs' Motion To Compel Production Of Documents And Response To Interrogatories, For In Camera Review Of Documents Designated By Defendants To Be Privileged, For A Protective Order To Preclude The Use of Speaking Objections During Depositions, For Leave To Intervene Additional Class Representatives And For Enlargement Of Time To File Motion For Class Certification filed by The County of Erie. (Domagalski, James) (Entered: 08/17/2005)
30 AFFIRMATION signed by James P. Domagalski, Esq. re 29 Memorandum in Opposition to Motion,, filed by The County of Erie, The County of Erie filed by The County of Erie, The County of Erie. (Attachments: # 1 Ex. A;# 2 Ex. B;# 3 Ex. C;# 4 Ex. D;# 5 Ex. E;# 6 Ex. F;# 7 Ex. G.)(Domagalski, James) (Entered: 08/17/2005)
31 AFFIRMATION signed by Thomas C. D'Agostino, Esq. re 25 MOTION to Compel and for Protective Order, Leave to Intervene and Enlargement of Time filed by H. McCarthy Gibson, Timothy. Howard Affirmation in opposition to the portion of Plaintiff's motion which seeks an enlargement of time for Plaintiffs to file their motion for class certification filed by H. McCarthy Gibson, Timothy. Howard. (D'Agostino, Thomas) (Entered: 08/17/2005)
32 CERTIFICATE OF SERVICE by The County of Erie re 29 Memorandum in Opposition to Motion,,, 30 Affirmation, (Domagalski, James) (Entered: 08/17/2005)
33 MEMORANDUM in Opposition re 22 MOTION to Compel or Preclude Discovery, 16 MOTION to Compel by The County of Erie, Patrick M. Gallivan, Timothy Howard, Donald Livingston and filed by Adam Pritchard, Edward Robinson, Julenne Tucker. (Attachments: # 1 Affidavit Affidavit of Elmer Keach in Opposition, with one exhibit −− declaration of amina robinson)(Keach, Elmer) (Entered: 08/17/2005)
E−Filing Error : 32 CERTIFICATE OF SERVICE by The County of Erie ** incorrect pdf file attached, attorney to re−file** (DZ, ) (Entered: 08/18/2005)
Document #33 (Memorandum by Elmer Keach) filed without proof of service (DZ, ) (Entered: 08/18/2005)

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08/18/2005

34

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER re 28 Order, Set Deadlines/Hearings

Defense counsel requests rescheduling the oral argument and settlement conference set for 9/16/2005. Given the number and location of counsel in this action and the reasons stated by defense counsel, the Court reluctantly agrees.

08/18/2005 08/19/2005 08/19/2005 08/22/2005 08/22/2005
08/22/2005 08/23/2005 08/23/2005
08/23/2005 08/23/2005 08/23/2005

Oral Argument reset for Tues., 9/20/2005, 11:00 AM, before Hon. Hugh B. Scott. Settlement Conference also reset for Tues., 9/20/2005, 11:00 AM, before Hon. Hugh B. Scott following the oral argument. With the scheduling logistics involved with all parties in this case, future adjournments or rescheduling may not be possible. So Ordered. Signed by Hon. Hugh B. Scott on 8/18/2005. (DRH) (Entered: 08/18/2005)

35 CERTIFICATE OF SERVICE by The County of Erie re 32 Certificate of Service, 29 Memorandum in Opposition to Motion,,, 30 Affirmation, which corrects and replaces entry 32 (Domagalski, James) (Entered: 08/18/2005)

36 CERTIFICATE OF SERVICE by Adam Pritchard, Edward Robinson, Julenne Tucker re 25 MOTION to Compel and for Protective Order, Leave to Intervene and Enlargement of Time (Keach, Elmer) (Entered: 08/19/2005)

37 CERTIFICATE OF SERVICE by Adam Pritchard, Edward Robinson, Julenne Tucker re 33 Memorandum in Opposition to Motion, (Keach, Elmer) (Entered: 08/19/2005)

38 MOTION for Protective Order by The County of Erie.(Domagalski, James) (Entered: 08/22/2005)

39 AFFIRMATION signed by James P. Domagalski, Esq. re 38 MOTION for Protective Order filed by The County of Erie ,further in support of County Defendants' motion to preclude. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Domagalski, James) (Entered: 08/22/2005)

E−Filing Notification: 38 MOTION for Protective Order, 39 AFFIRMATION **documents refiled** (DZ, ) (Entered: 08/23/2005)

40 MOTION for Protective Order correcting and replacing docket entry 38 by The County of Erie.(Domagalski, James) (Entered: 08/23/2005)

41 AFFIRMATION signed by James P. Domagalski, Esq. re 40 MOTION for Protective Order correcting and replacing docket entry 38 filed by The County of Erie , which Affirmation corrects and replaces docket entry 39. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Domagalski, James) (Entered: 08/23/2005)

42 MEMORANDUM IN SUPPORT re 40 MOTION for Protective Order correcting and replacing docket entry 38, 41 Affirmation, byThe County of Erie. (Domagalski, James) (Entered: 08/23/2005)

43 CERTIFICATE OF SERVICE by The County of Erie re 40 MOTION for Protective Order correcting and replacing docket entry 38, 41 Affirmation,, 42 Memorandum in Support (Domagalski, James) (Entered: 08/23/2005)

44

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF NOTICE of Hearing on Motion 40 MOTION for Protective Order correcting and replacing docket entry 38:

Despite this Court's Order (Docket No. 28, see Docket No. 21 minute entry) that motions related to issues raised on 8/3/2005 be filed by 8/10/2005, the Court will consider this latest (otherwise out of time) motion because of the allegation of actions that occurred after that motion deadline.

Responses due by 9/1/2005; Replies due by 9/16/2005. Motion Hearing set for Tues., 9/20/2005, 11:00 AM, before Hon. Hugh B. Scott, the same date and time as argument of the other pending motions in this action (Docket Nos. 16, 22, 25).

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08/23/2005
09/01/2005 09/01/2005 09/01/2005 09/01/2005
09/01/2005 09/16/2005 09/16/2005 09/20/2005

(DRH) Modified on 8/23/2005−−correct day of argument (DRH). (Entered: 08/23/2005)
E−Filing Error Corrected: 44

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF NOTICE of Hearing on Motion 40 MOTION for Protective Order correcting and replacing docket entry 38:

Despite this Court's Order (Docket No. 28, see Docket No. 21 minute entry) that motions related to issues raised on 8/3/2005 be filed by 8/10/2005, the Court will consider this latest (otherwise out of time) motion because of the allegation of actions that occurred after that motion deadline.

Responses due by 9/1/2005; Replies due by 9/16/2005. Motion Hearing set for Tues., 9/20/2005, 11:00 AM, before Hon. Hugh B. Scott, the same date and time as argument of the other pending motions in this action (Docket Nos. 16, 22, 25). (DRH) Modified on 8/23/2005−−correct day of argument (DRH). (Entered: 08/23/2005)

45 REPLY/RESPONSE to re 33 Memorandum in Opposition to Motion,, 16 MOTION to Compel by The County of Erie, Patrick M. Gallivan, Timothy Howard, Donald Livingston and, 17 Affidavit filed by The County of Erie. (Attachments: # 1 Exhibit A)(Domagalski, James) (Entered: 09/01/2005)

46 CERTIFICATE OF SERVICE by The County of Erie re 45 Reply/Response, (Domagalski, James) (Entered: 09/01/2005)

47 REPLY to Response to Motion re 25 MOTION to Compel and for Protective Order, Leave to Intervene and Enlargement of Time filed by Adam Pritchard, Edward Robinson, Julenne Tucker. (Attachments: # 1 Exhibit Exhibit A to Keach Affirmation −− Briefing in Marriott v. County of Montgomery# 2 Certificate of Service)(Keach, Elmer) (Entered: 09/01/2005)

48 AFFIRMATION in Opposition re 40 MOTION for Protective Order correcting and replacing docket entry 38 filed by Adam Pritchard, Edward Robinson, Julenne Tucker. (Attachments: # 1 Exhbit A to Keach Affirmation −− Transcript of Proceedings in Marriott v. County of Montgomery# 2 Exhibit B to Keach Affirmation −− Electronic Mail from Keach to Domalgowski, 8.12.05# 3 Exhibit C to Keach Affirmation −− Deposition Transcript of Diane Hayes# 4 Exhibit D to Keach Affirmation −− Memorandum from Gallivan to Gibson, dated 8.13.04# 5 Memorandum of Law# 6 Certificate of Service)(Keach, Elmer) Modified text on 9/2/2005 to indicate document is an Affirmation(DZ, ). (Entered: 09/01/2005)

E−Filing Error Corrected: 48 *text modified to indicate document is an AFFIRMATION (not an affidavit)* (DZ, ) (Entered: 09/02/2005)

49 REPLY/RESPONSE to re 40 MOTION for Protective Order correcting and replacing docket entry 38, 47 Reply to Response to Motion,, 48 Affidavit in Opposition to Motion,,, 41 Affirmation,, 42 Memorandum in Support filed by The County of Erie. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Domagalski, James) (Entered: 09/16/2005)

50 CERTIFICATE OF SERVICE by The County of Erie re 49 Reply/Response, (Domagalski, James) (Entered: 09/16/2005)

51

HONORABLE HUGH B. SCOTT

TEXT OF MINUTE ENTRY

For proceedings held before Magistrate Judge Hugh B. Scott:

Elmer Robert Keach, III, Esq., and Charles LaDuca, Esq., for plaintiffs; James Domalgalski, Esq., and Assistant County Attorney Kristin Klein Wheaton for County Defendants, Louis Dingeldey, Esq., for defendant Gipson.

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09/26/2005
09/26/2005 09/26/2005 09/30/2005 10/11/2005

Motion Hearing held on 9/20/2005 re 22 MOTION to Compel or Preclude Discovery filed by H. McCarthy Gipson, 40 MOTION for Protective Order correcting and replacing docket entry 38 filed by The County of Erie, 16 MOTION to Compel by The County of Erie, Patrick M. Gallivan, Timothy Howard, Donald Livingston and filed by Robert Huggins, 25 MOTION to Compel and for Protective Order, Leave to Intervene and Enlargement of Time filed by Adam Pritchard, Edward Robinson, Julenne Tucker, Court reserved decision on all motions. Settlement Conference held on 9/20/2005. Settlement not possible at this time and conference adjourned. (DRH) (Entered: 09/20/2005)

52

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER

Granting in part and denying in part 16 County Defendants' Motion to Compel (as detailed in the Order), granting 22 Gipson's Motion to Compel, granting in part and denying in part 25 plaintiffs' Motion to Compel (as described in detail in the Order), granting in part and denying in part 40 County Defendants' Motion for Protective Order (also as described in the Order).

Plaintiffs are either to produce requested disclosure and discovery on plaintiff Julenne Tucker or formally withdraw his claims within 30 days of entry of this Order.

The Court will enter a protective Order regarding defendants' production of booking sheet information.

Plaintiffs have until 12/20/2005 in which to file a class certification motion; this is the final extension of the class certification deadline.

County Defendants to receive reasonable motion costs for Docket No. 16; Gipson is to receive some reasonable motion costs for Docket No. 22 (as described more fully in the Order); plaintiffs to receive some reasonable motion costs for Docket No. 25 (again, as described more fully in the Order). Parties are to file and exchange their respective motion cost application affidavits five (5) business days from entry of this Order; the opposing parties may file a response within five (5) business days of service of that affidavit. No reply papers will be accepted for the fee applications. The Court will deem the fee applications submitted as of the date for responding papers and issue an Order awarding costs. These sanctions shall be paid by respective counsel responsible for the expense.

So Ordered. Signed by Magistrate Judge Hugh B. Scott on 9/26/2005. (DRH) (Entered: 09/26/2005)

53

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

PROTECTIVE ORDER

Regarding Docket No. 25, plaintiffs' motion to produce booking sheets. See Docket No. 52.Signed by Hon. Hugh B. Scott on 9/26/2005. (Attachments: # 1 Exhibit A, Sworn Statement)(DRH) (Entered: 09/26/2005)

54 TEXT OF Calendar Entry, deadline for motion for class certification, 12/20/2005. (DRH) (Entered: 09/26/2005)

55 STIPULATION re 52 Order on Motion to Compel,,,,,,,,,,,,,,,,,,,,,,,, Order on Motion for Protective Order,,,,,,, Waiving Right of all Counsel to Seek Costs by Adam Pritchard, Edward Robinson, Julenne Tucker. (Keach, Elmer) (Entered: 09/30/2005)

56

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER re 55 Stipulation filed by Adam Pritchard, Edward Robinson, Julenne Tucker

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10/17/2005 10/19/2005
10/21/2005 10/21/2005 10/21/2005 10/21/2005
10/26/2005 10/26/2005

The Court declines to enter an Order adopting counsels' stipulation (Docket No. 55). Parties shall submit to the Court their respective motion costs. These Motions due by 10/21/2005. Responses to those submissions due by 10/28/2005. So Ordered. Signed by Hon. Hugh B. Scott on 10/11/2005. (DRH) (Entered: 10/11/2005)

57

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER

At the request of all parties, Status Conference set for Wed., 10/19/2005, 2:30 PM, before Hon. Hugh B. Scott.So Ordered. Signed by Hon. Hugh B. Scott on 10/17/2005. (DRH) (Entered: 10/17/2005)

58

HONORABLE HUGH B. SCOTT

TEXT OF MINUTE ENTRY

For proceedings held before Magistrate Judge Hugh B. Scott:

David Jay, Esq., for plaintiffs; James Domagalski, Esq., for County defendants, Assistant County Attorney Kristin Klein Wheaton, Louis Dingeldey, Esq., for defendant Gipson.

Status Conference held on 10/19/2005. Parties reported on progress regarding discovery, with the parties completing depositions, the County Defendants producing summaries from 30,000 booking sheets. The County Defendants indicated that they intend to furnish an in camera affidavit of their claimed privileged documents by the end of next week. Parties indicated that discovery sanction applications would reveal essentially offsetting expenses, with some suggesting that the former stipulation regarding motion costs (Docket No. 55) be so ordered.

Nevertheless, the Court expects motion applications on or before 10/21/2005, and any responses by 10/28/2005. (DRH) (Entered: 10/19/2005)
59 AFFIRMATION signed by Louis B. Dingeldey Jr., Esq. filed by H. McCarthy Gibson Affirmation in support of fee appication. (Attachments: # 1 Certificate of Service)(Dingeldey, Louis) (Entered: 10/21/2005)
60 AFFIDAVIT re 58 Terminate Hearings,,,,, Status Conference,,,, Affidavit in Support of Application for Motion Costs and Attorneys' Fees by The County of Erie. (Attachments: # 1 Exhibit A)(Domagalski, James) (Entered: 10/21/2005)
61 CERTIFICATE OF SERVICE by The County of Erie re 60 Affidavit (Domagalski, James) (Entered: 10/21/2005)
62 AFFIRMATION signed by Elmer Robert Keach, III re 56 Order,, Set Deadlines,, 58 Terminate Hearings,,,,, Status Conference,,,,, 52 Order on Motion to Compel,,,,,,,,,,,,,,,,,,,,,,,, Order on Motion for Protective Order,,,,,,, filed by Adam Pritchard, Edward Robinson, Julenne Tucker Regarding Assessment of Attorneys' Fees. (Attachments: # 1 Exhibit Exhibit A −− Memorandum Decision and Order, 09.26.05# 2 Exhibit Exhibit B −− Memorandum Decision and Order, 10.11.05# 3 Exhibit Exhibit C −− Keach Fees Affidavit# 4 Exhibit Exhibit d −− LaDuca Fees Affirmation# 5 Exhibit Exhibit E −− Mason Fees Affidavit# 6 Exhibit Exhibit F −− Rozger Fees Affidavit# 7 Certificate of Service)(Keach, Elmer) (Entered: 10/21/2005)
63 MOTION for Extension of Time to File Discontinuance for Julenne Tucker, On Consent by Adam Pritchard, Edward Robinson, Julenne Tucker. (Attachments: # 1 Affidavit Affirmation of Elmer Keach# 2 Certificate of Service)(Keach, Elmer) (Entered: 10/26/2005)
E−Filing Error : 63 MOTION for Extension of Time to File Discontinuance for Julenne Tucker, (Keach, Elmer) **document to be refiled as the Affirmation is not sgined** (DZ, ) (Entered: 10/27/2005)

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10/27/2005

64

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER granting 63 Motion for Extension of Time to File

Plaintiffs' counsel request an enlargement of time, from 10/30/2005 to 11/4/2005, in order to either provide discovery regarding plaintiff Tucker or discontinue his claim, stating that they are attempting to contact Mr. Tucker (currently incarcerated in Illinois) but require additional time to contact him. Defendants do not object to this enlargement. This motion is granted; plaintiffs have until 11/4/2005 in order to comply with the previous Order (Docket No. 52) regarding Mr. Tucker.

10/27/2005 10/28/2005 10/28/2005 10/28/2005
11/04/2005 11/04/2005 11/07/2005

So Ordered. Signed by Magistrate Judge Hugh B. Scott on 10/27/2005. (DRH) (Entered: 10/27/2005)

Set Deadlines/Hearings: Motions (discontinuing claims by plaintiff Julenne Tucker or producing discovery for him) due by 11/4/2005. (DRH) (Entered: 10/27/2005)

65 AFFIDAVIT re 62 Affirmation,, Reply affidavit of James Domagalski regarding Cost Motions by The County of Erie, The County of Erie filed by The County of Erie, The County of Erie. (Domagalski, James) (Entered: 10/28/2005)

66 CERTIFICATE OF SERVICE by The County of Erie re 65 Affidavit (Domagalski, James) (Entered: 10/28/2005)

67 AFFIRMATION signed by Elmer Robert Keach, III re 56 Order,, Set Deadlines,, 58 Terminate Hearings,,,,, Status Conference,,,,, 52 Order on Motion to Compel,,,,,,,,,,,,,,,,,,,,,,,, Order on Motion for Protective Order,,,,,,, filed by Adam Pritchard, Edward Robinson, Julenne Tucker Regarding Defendants' Request for Attorneys' Fees. (Attachments: # 1 Certificate of Service)(Keach, Elmer) (Entered: 10/28/2005)

68 MOTION to Withdraw as Attorney relative to Plaintiff Julenne Tucker by Adam Pritchard, Edward Robinson, Julenne Tucker. (Attachments: # 1 Affidavit Affirmation of Elmer Robert Keach, III# 2 Certificate of Service)(Keach, Elmer) (Entered: 11/04/2005)

E−Filing Error: 68 MOTION to Withdraw as Attorney (Keach, Elmer) **document to be refiled in its entirety as the Affirmation is not signed** (DZ, ) (Entered: 11/07/2005)

69

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

NOTICE on Motion 68 MOTION to Withdraw as Attorney relative to Plaintiff Julenne Tucker:

Responses due by 11/28/2005; Replies due by 12/12/2005. Motion then deemed submitted without oral argument unless otherwise determined by the Court upon review of the papers.

11/10/2005 11/14/2005

Plaintiffs' counsel to forward a copy of this Order to plaintiff Tucker and to verify to the Court the address used to serve Tucker.(DRH) (Entered: 11/07/2005)

70 Amended MOTION to Withdraw as Attorney and for Discontinuance of Individual Claims of Julenne Tucker, Corrected Pursuant to Instructions of Clerk's Office by Adam Pritchard, Edward Robinson, Julenne Tucker. (Attachments: # 1 Affidavit Affidavit of Elmer Keach# 2 Certificate of Service Certificate of Service, amended to reflect address and documents served on Plaintiff Tucker)(Keach, Elmer) (Entered: 11/10/2005)

71

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER re 52 Order on Motion to Compel, Order on Motion for Protective Order, 56 Order, Set Deadlines, 58 Terminate Hearings, Status Conference, 59 Affirmation filed by H. McCarthy Gipson, 60 Affidavit filed by The County of Erie, 62 Affirmation, filed by Adam Pritchard, Edward Robinson, Julenne
Tucker

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11/28/2005 11/28/2005 12/06/2005 12/12/2005
12/14/2005
12/16/2005

The Court finds that each movant or opponent to the discovery motions was substantially justified in their respective position. Alternatively, under Fed. R. Civ. P. 37(a)(4)(C), the Court determines that each party should bear its own motion costs relative to their respective discovery motions. So Ordered. Signed by Hon. Hugh B. Scott on 11/14/2005. (DRH) (Entered: 11/14/2005)

72 AFFIRMATION signed by James P. Domagalski re 70 Amended MOTION to Withdraw as Attorney and for Discontinuance of Individual Claims of Julenne Tucker, Corrected Pursuant to Instructions of Clerk's Office, 68 MOTION to Withdraw as Attorney relative to Plaintiff Julenne Tucker filed by The County of Erie, The County of Erie in response to Julenne Tucker's motion filed by The County of Erie, The County of Erie. (Domagalski, James) (Entered: 11/28/2005)

73 CERTIFICATE OF SERVICE by The County of Erie re 72 Affirmation, (Domagalski, James) (Entered: 11/28/2005)

74

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER

Plaintiffs' counsel's letter application of 11/30/2005 to file an attorney's affirmation under seal relative to their pending motion (see Docket Nos 68, 70) is denied. Plaintiffs' counsel may appeal this decision or withdraw the affirmation within five (5) business days of this Order. Absent any action by plaintiffs' counsel, the Court Clerk is instructed to file the affirmation. So Ordered. Signed by Hon. Hugh B. Scott on 12/6/2005. (DRH) (Entered: 12/06/2005)

75

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER

Parties have jointly requested an extension of the final deadline for class certification motion (see Docket No. 52), from 12/20/2005 to 2/3/2006, and an extension of class certification−related discovery (see Docket No. 13) from 8/23/2005 to some unspecified time (note, regular fact discovery deadline is 4/6/2006). The parties note that additional documents were found and produced to plaintiffs that may require further discovery including reopening depositions. This joint request is granted; motion for class certification is due Fri., 2/3/2006, class certification−related discovery shall conclude by Mon., 1/30/2006. So Ordered. Signed by Hon. Hugh B. Scott on 12/12/2005. (DRH) Modified on 12/14/2005−−no status conference was held prior to entry of this Order (DRH). (Entered: 12/12/2005)
E−Filing Notification: 75

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER

Parties have jointly requested an extension of the final deadline for class certification motion (see Docket No. 52), from 12/20/2005 to 2/3/2006, and an extension of class certification−related discovery (see Docket No. 13) from 8/23/2005 to some unspecified time (note, regular fact discovery deadline is 4/6/2006). The parties note that additional documents were found and produced to plaintiffs that may require further discovery including reopening depositions. This joint request is granted; motion for class certification is due Fri., 2/3/2006, class certification−related discovery shall conclude by Mon., 1/30/2006. So Ordered. Signed by Hon. Hugh B. Scott on 12/12/2005. (DRH) Modified on 12/14/2005−−no status conference was held prior to entry of this Order (DRH). (Entered: 12/14/2005)
76 AFFIRMATION signed by Elmer Robert Keach, III in support of motion for leave to discontinue the claims of Julenne Tucker as class representative and to withdraw as counsel for Mr. Tucker. (document filed pursuant to instructions from chambers) (DZ, ) (Entered: 12/19/2005)

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12/27/2005

77

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER granting in part and denying in part 68 Motion to Withdraw as Attorney, granting in part and denying in part 70 Motion to Withdraw as
Attorney.

01/04/2006

Plaintiffs' motion to discontinue plaintiff Tucker's class claims is deferred until after class certification motion is made and argued. Plaintiffs' counsel's motion for leave to withdraw as counsel to Tucker is denied. Plaintiffs' counsel's motion to allow Tucker to proceed separately, that motion is also denied. So Ordered. Signed by Magistrate Judge Hugh B. Scott on 12/27/2005. (DRH) (Entered: 12/27/2005)

78

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER re, 52 Order on Motion to Compel, Order on Motion for Protective Order, re 25 MOTION to Compel and for Protective Order, Leave to Intervene and Enlargement of Time filed by Adam Pritchard, Edward Robinson, Julenne
Tucker

01/19/2006
01/19/2006 01/19/2006 02/02/2006

Regarding the in camera inspection of defendants' documents identified in the County Defendants' privilege log, as specified in the Order, some documents are deemed to be privileged, other documents are not and should be produced. Defendants shall make arrangements with Chambers to retrieve the in camera documents. So Ordered. Signed by Hon. Hugh B. Scott on 1/4/2006. (DRH) (Entered: 01/04/2006)

79 REPLY/RESPONSE to re 78 Order,, Objections To Magistrate's Pre−Trial Order Regarding Privileged Documents filed by The County of Erie. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C Documents Under Proposed Seal# 4 Exhibit D, Documents Under Proposed Seal# 5 Exhibit E, Documents Under Proposed Seal)(Domagalski, James) (Entered: 01/19/2006)

80 MOTION to Stay discovery Order and for an expedited hearing by The County of Erie. (Attachments: # 1 Affidavit in support# 2 Exhibit A# 3 Exhibit B, Proposed Order)(Domagalski, James) (Entered: 01/19/2006)

81 MEMORANDUM in Support re 80 MOTION to Stay discovery Order and for an expedited hearing filed by The County of Erie. (Domagalski, James) (Entered: 01/19/2006)

82

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

Order re: Request for Extension of Time to File Class Certification Motion

The plaintiffs have requested an extension of time to file a motion for class certification. The request is granted to the extent that the plaintiffs shall have 45 days, from the date of this Order, to file the motion for class certification.

02/03/2006

So Ordered. Signed by Hon. Hugh B. Scott on 2/2/06. (JRA) (Entered: 02/02/2006)

83

TEXT Calendar Entry, Set Deadlines/Hearings:

02/06/2006
02/06/2006 02/13/2006

Class certification motion due 3/20/2006 (45 days from Order, Docket No. 82). (DRH) (Entered: 02/03/2006)
84 ORDER granting 80 Defendants' Motion to Stay. Plaintiffs shall file papers in response to defendants' objections on or before 2/13/2006. Defendants shall file any reply papers on or before 2/20/2006, at which time the objections will be taken under advisement without argument. Any adjustment to this current schedule shall be directed to Judge Scott. Signed by Judge John T. Curtin on 02/06/2006. (JEC) (Entered: 02/06/2006)
Set Deadlines/Hearings: Plaintiff's Response to Defendant's Objections due by 2/13/2006; Defendants' Replies due by 2/20/2006. (JEC) (Entered: 02/06/2006)
85 REPLY/RESPONSE to re 78 Order,,, 84 Order on Motion to Stay,, Set Deadlines/Hearings, 80 MOTION to Stay discovery Order and for an expedited

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02/13/2006 02/16/2006
02/17/2006 02/21/2006 02/21/2006
02/21/2006 02/28/2006 02/28/2006

hearing, 81 Memorandum in Support of Motion, 79 Reply/Response, filed by Adam Pritchard, Julenne Tucker. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Memorandum in Support of Plaintiffs' opposition to Defendants' objections)(Rozger, Jason) (Entered: 02/13/2006)

E−Filing Notification: Dopcument # 85 REPLY/RESPONSE (Rozger, Jason) filed without proof of service. (DZ, ) (Entered: 02/14/2006)

86 MOTION to Compel Deposition Testimony by Adam Pritchard, Edward Robinson. (Attachments: # 1 Affirmation of Elmer Keach In Support of Motion to Compel Deposition Testimony# 2 Exhibit Exhibit 1 to Keach Affirmation −− Plaintiffs' 12/04 Document Demands# 3 Exhibit Exhibit 2 to Keach Affirmation −− Erie County Discovery Response# 4 Exhibit Exhibit 3 to Keach Affirmation −− Undisclosed Email# 5 Exhibit Exhibit 4 to Keach Affirmation −− Erie County Privilege Logs# 6 Exhibit Exhibit 5 to Keach Affirmation −− Letter from Keach to Domagalski, 11.07.05# 7 Exhibit Exhibit 6 to Keach Affirmation −− Letter from Domagalski to Keach and LaDuca, 11.14.05# 8 Exhibit Exhibit 7 to Keach Affirmation −− Scheduling Email from Keach to all Counsel, 02.02.06# 9 Exhibit Exhibit 8 to Keach Affirmation −− Letter from Menken to Domagalski, 02.08.06# 10 Exhibit Exhibit 9 to Keach Affirmation −− Letter from Domagalski to LaDuca, 02.06.06# 11 Exhibit Exhibit 10 to Keach Affirmation −− Letter from Domagalski to Keach, 02.14.06# 12 Certificate of Service)(Keach, Elmer) (Entered: 02/16/2006)

87 AFFIRMATION signed by Jason Rozger re 85 Reply/Response,, E−Filing Notification filed by Adam Pritchard, Julenne Tucker, Adam Pritchard Certificate of Service filed by Adam Pritchard, Julenne Tucker, Adam Pritchard. (Rozger, Jason) (Entered: 02/17/2006)

88

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER re 86 MOTION to Compel Deposition Testimony filed by Adam Pritchard, Edward Robinson

Counsel is reminded of this Chambers' guidelines requiring submission of paper courtesy copy of all moving papers to the Chambers of the undersigned. Signed by Hon. Hugh B. Scott on 2/21/2006. (DRH) (Entered: 02/21/2006)

89

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF THE ORDER

The plaintiffs have filed a motion to compel 86 . The defendants shall respond to the motion by February 28, 2006. The plaintiffs may reply, if necessary, by March 7, 2006. The motion will be determined without oral argument unless otherwise scheduled upon review of the papers.

So Ordered. Signed by Hon. Hugh B. Scott on 2/21/06. (JRA) (Entered: 02/21/2006)
90 AFFIRMATION signed by James P. Domagalski, Esq. re 85 Reply/Response, filed by The County of Erie, The County of Erie Reply Affirmation of James P. Domalgaski, Esq. In Support of Objections To Magistrate's Order filed by The County of Erie, The County of Erie. (Domagalski, James) (Entered: 02/21/2006)
91 AFFIRMATION re 86 MOTION to Compel Deposition Testimony filed by The County of Erie, The County of Erie Affirmation of James P. Domasgalski in Opposition to Plaintiffs' Motion to Compel filed by The County of Erie, The County of Erie. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Domagalski, James) (Entered: 02/28/2006)
92 AFFIRMATION signed by Thomas C. D'Agostino, Esq, re 86 MOTION to Compel Deposition Testimony filed by H. McCarthy Gibson, H. McCarthy Gibson Affirmation in opposition to motion filed by H. McCarthy Gibson, H. McCarthy Gibson. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(D'Agostino, Thomas) (Entered: 02/28/2006)

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03/07/2006
03/07/2006 03/08/2006 03/08/2006 03/09/2006 03/10/2006
03/10/2006
03/13/2006
03/14/2006

93 REPLY to Response to Motion re 86 MOTION to Compel Deposition Testimony filed by Adam Pritchard, Edward Robinson. (Attachments: # 1 Exhibit Exhibit 11 −− Email# 2 Exhibit Exhibit 12# 3 Exhibit Exhibit 13)(Keach, Elmer) (Entered: 03/07/2006)

94 CERTIFICATE OF SERVICE by Adam Pritchard, Edward Robinson re 93 Reply to Response to Motion (Keach, Elmer) (Entered: 03/07/2006)

95 NOTICE of Appearance by Bruce E. Menken on behalf of Adam Pritchard, Edward Robinson, Julenne Tucker (Menken, Bruce) (Entered: 03/08/2006)

E−Filing Notification: 95 NOTICE of Appearance (Menken, Bruce), **Document to be re−filed for signature requirements** (DZ, ) (Entered: 03/09/2006)

96 NOTICE of Appearance by Bruce E. Menken on behalf of Adam Pritchard, Edward Robinson, Julenne Tucker (Menken, Bruce) (Entered: 03/09/2006)

97 MOTION for Extension of Time to Complete Discovery, MOTION for Extension of Time to File Class Certification Motion by Adam Pritchard, Julenne Tucker. (Attachments: # 1 Affidavit of Bruce Menken# 2 Certificate of Service)(Rozger, Jason) (Entered: 03/10/2006)

E−Filing Notification: 97 MOTION for Extension of Time to Complete Discovery MOTION for Extension of Time to File Class Certification Motion [Rozger, Jason] **Document to be re−filed for signature requirements − e−filer must be signer of the document and the Affirmation (labeled on the docket as an affidavit) is not signed** (DZ, ) (Entered: 03/13/2006)

98 MOTION for Extension of Time to Complete Discovery, MOTION for Extension of Time to File by Adam Pritchard, Edward Robinson, Julenne Tucker. (Attachments: # 1 Affidavit Affirmation of Bruce Menken, Esq.# 2 Certificate of Service)(Rozger, Jason) (Entered: 03/13/2006)

99

MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF NOTICE of Hearing on Motion 97 MOTION for Extension of Time to Complete Discovery MOTION for Extension of Time to File Class Certification Motion, 98 MOTION for Extension of Time to Complete Discovery MOTION for Extension of Time to File:

03/16/2006 03/16/2006 03/17/2006

Responses due by 3/16/2006, and, given the present deadlines plaintiffs seek extended in these motions, motions will be deemed submitted without oral argument on 3/16/2006.(DRH) (Entered: 03/14/2006)

100 REPLY/RESPONSE to re 98 MOTION for Extension of Time to Complete Discovery MOTION for Extension of Time to File Reply Affirmation of James P. Domagalski in Opposition to Plaintiffs' Motion For Enlargement of Time filed by The County of Erie. (Attachments: # 1 Exhibit A through D)(Domagalski, James) (Entered: 03/16/2006)

101 AFFIRMATION signed by Louis B. Dingeldey Jr. re 98 MOTION for Extension of Time to Complete Discovery MOTION for Extension of Time to File filed by H. McCarthy Gibson, H. McCarthy Gibson Affirmation in Opposition filed by H. McCarthy Gibson, H. McCarthy Gibson. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Dingeldey, Louis) (Entered: 03/16/2006)

102

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER re 83 Calendar Entry, Set Deadlines/Hearings, 97 MOTION for Extension of Time to Complete Discovery MOTION for Extension of Time to File Class Certification Motion filed by Adam Pritchard, Julenne Tucker, 98 MOTION for Extension of Time to Complete Discovery MOTION for Extension of Time to File filed by Adam Pritchard, Edward
Robinson, Julenne Tucker

In light of the pending motions and the deadline for class certification, class certification Motions now due by Tues., 3/21/2006. So Ordered. Signed by Hon. Hugh B. Scott on 3/17/2006. (DRH) (Entered: 03/17/2006)

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03/20/2006

103

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER granting 86 Motion to Compel, granting in part and denying in part 97 Motion for Extension of Time to Complete Discovery, granting in part and denying in part 97 Motion for Extension of Time to File, granting in part and
denying in part 98 Motion for Extension of Time to Complete Discovery, granting in part and denying in part 98 Motion for Extension of Time to File

Plaintiffs' motion (Docket No. 86) for recovery of costs for continued examinations of certain witnesses is denied.

Plaintiffs' motion (Docket Nos. 97, 98) for extension of time to complete discovery and to file granted, but denied as to dates sought by plaintiffs.

Class certification discovery to be completed by 5/1/2006; class certification motion due by 7/10/2006; all discovery in case−in−chief shall be completed by 9/12/2006; plaintiffs to identify experts by 7/17/2006; defendants to identify experts by 8/15/2006; all expert discovery concludes by 9/1/2006; dispositive motions due by 12/27/2006. All previous Scheduling Order deadlines not amended by this Order remain in full effect.

NO FURTHER EXTENSIONS OF THESE DEADLINES SHALL BE GRANTED.

03/20/2006

So Ordered. Signed by Magistrate Judge Hugh B. Scott on 3/20/2006. (DRH) (Entered: 03/20/2006)

104

MAGISTRATE JUDGE HUGH B. SCOTT

Set/Reset Scheduling Order Deadlines; Calendar Entry

Class certification discovery due by 5/1/2006. Class certification motion due by 7/10/2006.

Plaintiff Expert Witness ID due by 7/17/2006. Defendant Expert Witness ID due by 8/15/2006. Motions to Compel Discovery due by 8/14/2006. Discovery due by 9/12/2006. Motions due by 12/27/2006. All previous Scheduling Order deadlines not amended by this Order (or Docket No. 103) remain in full effect.

NO FURTHER EXTENSIONS OF THESE DEADLINES SHALL BE GRANTED.

03/23/2006 04/17/2006
05/10/2006 05/11/2006 05/11/2006 05/12/2006

(DRH) (Entered: 03/20/2006)
105 NOTICE of Appearance by Alexander E. Barnett on behalf of all plaintiffs (Barnett, Alexander) (Entered: 03/23/2006)
106 **VACATED pursuant to Order item #162** ORDER that the County Defendants' objections to Magistrate Judge Scott's Order of 1/4/06 are overruled, and counsel shall make arrangements for production of the in camera documents as directed by Judge Scott. Signed by Hon. John T. Curtin on 4/7/06. (DZ, ) Modified on 1/9/2007 (DZ, ). (Entered: 04/18/2006)
107 MOTION to Stay re 106 Order, by The County of Erie. (Attachments: # 1 Affidavit in Support of Motion To Stay Order# 2 Exhibit A# 3 Memorandum in Support of Motion to Stay Order)(Domagalski, James) (Entered: 05/10/2006)
108 AFFIDAVIT in Opposition re 107 MOTION to Stay re 106 Order, filed by Adam Pritchard, Edward Robinson, Julenne Tucker. (Keach, Elmer) (Entered: 05/11/2006)
E−Filing Notification: 108 AFFIDAVIT in Opposition (Keach, Elmer) **Document filed without proof of service** (DZ, ) (Entered: 05/12/2006)
109 AFFIDAVIT in Opposition re 107 MOTION to Stay re 106 Order, Amended to Include Certificate of Service filed by Adam Pritchard, Edward Robinson, Julenne Tucker. (Attachments: # 1 Certificate of Service)(Keach, Elmer) (Entered:

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 25 of 45

05/18/2006 05/22/2006 05/22/2006 05/22/2006
05/22/2006
06/06/2006
06/13/2006 06/14/2006 06/14/2006 06/14/2006
06/14/2006

05/12/2006)

110 MOTION to Compel by Adam Pritchard, Edward Robinson. (Attachments: # 1 Affidavit Affirmation of Elmer R. Keach in Support of Motion# 2 Certificate of Service)(Keach, Elmer) (Entered: 05/18/2006)

113 ORDER denying 107 the County Defendants' Motion to Stay this court's April 17, 2006 order. The plaintiffs' motion to compel is within the referral authority granted to Magistrate Judge Scott, and all scheduling matters pertaining to this motion shall be directed to Judge Scott. Signed by Judge John T. Curtin on 05/19/2006. (JEC) Additional attachment(s) added on 5/22/2006 (JEC, ). (Entered: 05/22/2006)

112 Letter from James P. Domagalski, dated 05/19/2006, to Hon. John T. Curtin requesting an opportunity to respond to Plaintiffs' Motion to Compel. (JEC) (Entered: 05/22/2006)

E−Filing Notification: 113 ORDER denying 107 the County Defendants' Motion to Stay this court's April 17, 2006 order. The plaintiffs' motion to compel is within the referral authority granted to Magistrate Judge Scott, and all scheduling matters pertaining to this motion shall be directed to Judge Scott. Signed by Judge John T. Curtin on 05/19/2006. (JEC) (Wrong order attached initially. This order was deleted, and correct order attached.) (JEC) (Entered: 05/22/2006)

114

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER granting 110 Motion to Compel

Defendants are to produce the documents sought forthwith, barring relief from another court. The County Defendants' application for time to brief this motion (Docket No. 112) is denied. So Ordered. Signed by Magistrate Judge Hugh B. Scott on 5/22/2006. (DRH) (Entered: 05/22/2006)

115

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER re 13 Scheduling Order, Set Deadlines/Hearings, Set Scheduling Order Deadlines

Further Pretrial Conference (formerly set for 7/11/2006) reset for Mon., 7/31/2006, 2:00 PM, before Hon. Hugh B. Scott. So Ordered. Signed by Hon. Hugh B. Scott on 6/6/2006. (DRH) (Entered: 06/06/2006)

116 MOTION for Protective Order by The County of Erie. (Attachments: # 1 Affidavit # 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Memorandum in Support)(Domagalski, James) (Entered: 06/13/2006)

**Disregard this entry, docketed in error** NOTICE OF REMOVAL EXHIBITS INDEX (DZ, ) Modified on 6/14/2006 (DZ, ). (Entered: 06/14/2006)

E−Filing Notification: **Please disregard, docketed in error to wrong case** NOTICE OF REMOVAL EXHIBITS INDEX (DZ, ) (DZ, ) (Entered: 06/14/2006)

117

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER re 116 MOTION for Protective Order filed by The County of Erie

Responses due by 6/21/2006 and motion will be deemed submitted, without oral argument or reply, on 6/21/2006. So Ordered. Signed by Hon. Hugh B. Scott on 6/14/2006. (DRH) (Entered: 06/14/2006)
118 MOTION to Amend/Correct 116 MOTION for Protective Order This attached amended affidavit of James P. Domagalski, sworn to the 14th day of June, 2006 only amends paragraph 9 of his affidavit sworn to and filed the 13th day of June, 2006 to now include an additional sentence referencing Exhibit C by The County of Erie. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Domagalski, James) (Entered: 06/14/2006)

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 26 of 45

06/14/2006 06/14/2006 06/15/2006

119 MOTION to Compel by Adam Pritchard, Edward Robinson. (Attachments: # 1 Affidavit Affirmation of Elmer Keach# 2 Exhibit Exhibit A to Keach Affirmation −− Plaintiffs' Discovery Requests# 3 Exhibit Exhibit B to Keach Affirmation −− Erie County Discovery Response# 4 Exhibit Exhibit C to Keach Affirmation −− Email not disclosed by Erie County# 5 Exhibit Exhibit D to Keach Affirmation −− Keach Affirmation, 02.16.06# 6 Exhibit Exhibit E to Keach Affirmation −− Domagalski Affidavit, 02.28.06# 7 Exhibit Exhibit F to Keach Affirmation −− Keach Affirmation, 03.07.06# 8 Exhibit Exhibit G to Keach Affirmation −− County Defendants' Proposed Confidentiality Order# 9 Exhibit Exhibit H to Keach Affirmation −− Email between LaDuca and Domagalski regarding confidentiality order# 10 Exhibit Exhibit I −− Inspection Memorandum# 11 Exhibit Exhibit J to Keach Affirmation −− Email correspondence between Erie County and NYS Sheriffs Association# 12 Exhibit Exhibit K to Keach Affirmation −− Email from Keach to Domagalksi and Gaglione regarding discovery issues# 13 Certificate of Service)(Keach, Elmer) (Entered: 06/14/2006)

120 Amended MOTION to Compel Corrected to Include a Complete Exhibit I by Adam Pritchard, Edward Robinson. (Attachments: # 1 Affidavit Affirmation of Elmer Keach# 2 Exhibit Exhibit A to Keach Affirmation −− Plaintiffs' Discovery Requests# 3 Exhibit Exhibit B to Keach Affirmation −− Erie County Discovery Responses# 4 Exhibit Exhibit C to Keach Affirmation −− Email not disclosed by Erie County# 5 Exhibit Exhibit D to Keach Affirmation −− Keach Affirmation, 02.16.06# 6 Exhibit Exhibit E to Keach Affirmation −− Domagalski Affidavit, 02.28.06# 7 Exhibit Exhibit F to Keach Affirmation −− Keach Affirmation, 03.07.06# 8 Exhibit Exhibit G to Keach Affirmation −− County Defendants' Proposed Confidentiality Order# 9 Exhibit Exhibit H to Keach Affirmation −− Email between LaDuca and Domalgalski regarding confidentiality order# 10 Exhibit Exhibit I to Keach Affirmation −− Inspection Memorandum# 11 Exhibit Exhibit J to Keach Affirmation −− Email correspondence between Erie County and NYS Sheriffs Association# 12 Exhibit Exhibit K to Keach Affirmation −− Email from Keach to Domagalski and Gaglione regarding discovery issues# 13 Certificate of Service)(Keach, Elmer) (Entered: 06/14/2006)

121

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER re 120 Amended MOTION to Compel Corrected to Include a Complete Exhibit I filed by Adam Pritchard, Edward Robinson

Responses due by 6/21/2006, and motion deemed submitted, without further reply or oral argument, on 6/21/2006, to be considered together with County Defendants' pending motion (Docket Nos. 116, 118).

Parties are reminded of this Chambers' requirement that a courtesy copy of moving papers must be submitted to the Chambers of the undersigned and, given the short briefing schedule, such submissions should be made as soon as possible.

06/15/2006

So Ordered. Signed by Hon. Hugh B. Scott on 6/15/2006. (DRH) (Entered: 06/15/2006)

122

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER granting 118 Motion to Amend or Correct

06/21/2006 06/21/2006

The County Defendants are granted leave to amend their previous motion as indicated in this motion. So Ordered. Signed by Magistrate Judge Hugh B. Scott on 6/15/2006. (DRH) (Entered: 06/15/2006)
123 AFFIRMATION signed by Louis B. Dingeldey Jr., Esq. re 120 Amended MOTION to Compel Corrected to Include a Complete Exhibit I filed by H. McCarthy Gibson, H. McCarthy Gibson Affirmation in response to Plaintiffs' motion to compel filed by H. McCarthy Gibson, H. McCarthy Gibson. (Dingeldey, Louis) (Entered: 06/21/2006)
124 AFFIRMATION signed by James P. Domagalski, Esq. re 120 Amended MOTION to Compel Corrected to Include a Complete Exhibit I filed by The County of Erie, The County of Erie Reply Affirmation in Opposition to Plaintiffs' Motion to

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06/21/2006 06/21/2006 06/21/2006 06/22/2006 06/22/2006 06/26/2006
07/06/2006
07/10/2006 07/10/2006 07/11/2006

Compel Production of Documents filed by The County of Erie, The County of Erie. (Domagalski, James) (Entered: 06/21/2006)

125 AFFIDAVIT in Opposition re 116 MOTION for Protective Order, 118 MOTION to Amend/Correct 116 MOTION for Protective Order This attached amended affidavit of James P. Domagalski, sworn to the 14th day of June, 2006 only amends paragraph 9 of his affidavit sworn to and filed the 13th day of June, 2006 to now incl filed by Adam Pritchard, Edward Robinson. (Attachments: # 1 Memorandum in Support)(Keach, Elmer) (Entered: 06/21/2006)

126 AFFIDAVIT Refiled with Signed Affidavit in Opposition re 116 MOTION for Protective Order, 118 MOTION to Amend/Correct 116 MOTION for Protective Order This attached amended affidavit of James P. Domagalski, sworn to the 14th day of June, 2006 only amends paragraph 9 of his affidavit sworn to and filed the 13th day of June, 2006 to now incl filed by Adam Pritchard, Edward Robinson. (Attachments: # 1 Memorandum in Support)(Keach, Elmer) (Entered: 06/22/2006)

E−Filing Notification: 124 AFFIRMATION signed by James P. Domagalski, Esq. **Document filed without proof of service** (DZ, ) (Entered: 06/22/2006)

127 CERTIFICATE OF SERVICE by Adam Pritchard, Edward Robinson re 126 Affidavit in Opposition to Motion, (Keach, Elmer) (Entered: 06/22/2006)

128 CERTIFICATE OF SERVICE by The County of Erie re 124 Affirmation, (Domagalski, James) (Entered: 06/22/2006)

129

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER re 116 MOTION for Protective Order filed by The County of Erie; 120 Amended MOTION to Compel Corrected to Include a Complete Exhibit I
filed by Adam Pritchard, Edward Robinson

Status Report due by 7/17/2006, defendants to produce "objections" log; plaintiffs may respond to this log within 10 business days. So Ordered. Signed by Hon. Hugh B. Scott on 6/26/2006. (DRH) (Entered: 06/26/2006)

130

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF ORDER

Plaintiffs have requested (by letter to Chambers, July 5, 2006) for leave to file an oversize memorandum of law, up to 40 pages, for their motion to certify the class. They have obtained the stipulation of defendants. That request is granted.

Plaintiffs are given leave to file a memorandum of law in excess of the page limit under this Court's Local Rules, to not exceed 40 pages. Further, anticipating that defendants may need more than the page limit to respond to plaintiffs' motion, defendants are also given leave to exceed the page limit of the Local Rules; they each also may file memoranda of up to 40 pages. If defendants need additional pages, they may make a timely application to the Court.

So Ordered. Signed by Hon. Hugh B. Scott on 7/6/2006. (DRH) (Entered: 07/06/2006)

131 SEALED DOCUMENT pursuant to Order item #162. (Entered: 07/10/2006)

132 SEALED DOCUMENT pursuant to Order item #162. (Entered: 07/10/2006)

133

MAGISTRATE JUDGE HUGH B. SCOTT

NOTICE of Hearing on Motion 131 MOTION to Certify Class:

Responses due by 8/31/2006; Replies due by 9/29/2006. Motion Hearing set for Wed., 10/11/2006, 10:30 AM, before Hon. Hugh B. Scott.

Parties are to address status of plaintiff Julenne Tucker as a representative plaintiff (see Docket No. 77). Parties are reminded of Chambers guidelines to submit

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07/17/2006 07/27/2006 07/31/2006 08/09/2006 08/11/2006
08/22/2006 08/29/2006

courtesy copies of all moving papers to Chambers.(DRH) (Entered: 07/11/2006)

134 OBJECTIONS to Order,, Set Deadlines, 129 Objections Log as required by Order filed by Defendants Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan.. (Domagalski, James) (Entered: 07/17/2006)

135

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT OF THE ORDER

Due to a conflict in the Court's calendar, the settlement conference scheduled for July 31, 2006 is adjourned to August 18, 2006 at 2:00 p.m. before the undersigned.

So Ordered.

Signed by Hon. Hugh B. Scott on 7/27/06. (JRA) (Entered: 07/27/2006)

136 AFFIRMATION signed by Elmer Robert Keach, III re 134 Objections −− non−motion filed by Adam Pritchard, Edward Robinson. (Attachments: # 1 Certificate of Service)(Keach, Elmer) (Entered: 07/31/2006)

137

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER

Granting in part and denying in part 116 Motion for Protective Order; denying in part and granting in part 120 Motion to Compel. Defendants are to produce EC−C 1189, 1220, defendants need not produce EC−C 1188, 1211−1215, as identified in defendants' objection log (Docket No. 134). So Ordered. Signed by Magistrate Judge Hugh B. Scott on 8/9/2006. (DRH) (Entered: 08/09/2006)

138

HONORABLE HUGH B. SCOTT

TEXT ORDER re 115 Terminate Hearings, Order, Set Scheduling Order Deadlines

Parties have requested adjournment of the Further Pretrial Conference, scheduled for 8/18/2006, to 8/23/2006 (letter of County Defendants' counsel to chambers, dated 8/10/2006). The latter date is not available for the Court.

Further Pretrial Conference, however, reset for Wed., 10/11/2006, 10:15 AM, before Hon. Hugh B. Scott, prior to argument of plaintiffs' motion for class certification (Docket Nos. 131, 133). Moreover, if counsel are of the belief that an intermediate conference with Magistrate Judge Scott would be of assistance in the prompt disposition of the case, such a conference will be scheduled upon application of any party.

So Ordered. Signed by Hon. Hugh B. Scott on 8/11/2006. (DRH) (Entered: 08/11/2006)

139

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT ORDER re 133 Notice of Hearing on Motion

At the request of defense counsel (and stipulated by plaintiffs' counsel), Responses due by 9/14/2006; Replies due by 10/13/2006. Oral Argument reset for Fri., 11/3/2006, 10:00 AM, before Hon. Hugh B. Scott. The Further Pretrial Conference remains as previously scheduled for Wed., 10/11/2006, at 10:15 am. So Ordered. Signed by Hon. Hugh B. Scott on 8/22/2006. (DRH) (Entered: 08/22/2006)
140 MOTION Court Supervision of Deposition of Kristin Machelor by Adam Pritchard, Edward Robinson. (Attachments: # 1 Affidavit Affirmation of Elmer Keach# 2 Exhibit Exhibit A to Keach Affirmation −− 01.04.06 Order of Court regarding Machelor Emails# 3 Exhibit Exhibit B to Keach Affirmation −− Portion of Machelor Emails# 4 Exhibit Exhibit C to Keach Affirmation −− Machelor Subpoena and Proof of Service# 5 Memorandum in Support # 6 Certificate of

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08/30/2006
08/30/2006 09/14/2006 09/14/2006 09/14/2006 09/18/2006
09/18/2006 09/18/2006

Service)(Keach, Elmer) (Entered: 08/29/2006)

141

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER re 103 Order on Motion to Compel, Order on Motion for Extension of Time to Complete Discovery, Order on Motion for Extension of Time to
File, 104 Set/Reset Scheduling Order Deadlines, Calendar Entry

Deadlines for discovery and dispositive motions held in abeyance pending resolution of class certification motion.

Settlement conference of 10/11/2006 remains as previously scheduled.

So Ordered. Signed by Hon. Hugh B. Scott on 8/30/2006. (DRH) (Entered: 08/30/2006)

142

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

NOTICE of Hearing on Motion 140 MOTION Court Supervision of Deposition of Kristin Machelor:

Responses due by 9/18/2006; Replies due by 9/25/2006. Motion Hearing set for Wed., 10/11/2006, 10:30 AM, before Hon. Hugh B. Scott, following a previously scheduled Settlement Conference for that day. (DRH) (Entered: 08/30/2006)

143 MEMORANDUM in Opposition re 131 MOTION to Certify Class County Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification filed by The County of Erie. (Attachments: # 1 Certificate of Service # 2 Affirmation of James P. Domagalski# 3 Exhibit 1through 10# 4 Exhibit 11 through 20# 5 Exhibit 21 through 30# 6 Exhibit 31 through 40# 7 Exhibit 41 through 50# 8 Exhibit 51 through 60# 9 Exhibit 61 through 66# 10 Affirmation of Frank T. Gaglione# 11 Exhibit A through H)(Domagalski, James) (Entered: 09/14/2006)

144 AFFIRMATION signed by Louis B. Dingeldey Jr., Esq. re 132 Affirmation,,,,,,,,,,,,,,,,,, filed by H. McCarthy Gibson, H. McCarthy Gibson filed by H. McCarthy Gibson, H. McCarthy Gibson. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18 Exhibit R# 19 Exhibit S# 20 Exhibit T# 21 Exhibit U# 22 Exhibit V# 23 Exhibit W# 24 Exhibit X# 25 Exhibit Y# 26 Exhibit Z)(Dingeldey, Louis) (Entered: 09/14/2006)

145 MEMORANDUM in Opposition re 131 MOTION to Certify Class filed by H. McCarthy Gibson. (Dingeldey, Louis) (Entered: 09/14/2006)

146

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT ORDER re 143 Memorandum in Opposition to Motion,, filed by The County of Erie

County Defendants referred to the United States District Court for the Southern District of New York's decision in Steinberg v. Rockland County, No. 04 Civ. 4889, cited in Docket No. 143, at 17. The County Defendants are to serve and file a copy of the referenced decision at their earliest convenience. So Ordered. Signed by Hon. Hugh B. Scott on 9/18/2006. (DRH) (Entered: 09/18/2006)
147 AFFIRMATION signed by Richard T. Sullivan in Opposition to Plaintiff's Motion for a Court Supervised Deposition on behalf of Non−Party Witness Kristen Machelor (Attachments: # 1 Memorandum in Support # 2 Certificate of Service)(Sullivan, Richard) Modified on 9/19/2006 (JMM, ). (Entered: 09/18/2006)
148 AFFIRMATION signed by Louis B. Dingeldey Jr. re 140 MOTION Court Supervision of Deposition of Kristin Machelor filed by H. McCarthy Gibson, H. McCarthy Gibson Affirmation in opposition filed by H. McCarthy Gibson, H. McCarthy Gibson. (Dingeldey, Louis) (Entered: 09/18/2006)

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09/18/2006
09/18/2006 09/19/2006 10/11/2006

149 AFFIRMATION of James P. Domagalski in Opposition re 140 MOTION Court Supervision of Deposition of Kristin Machelor (certificate of service attached) filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Attachments: # 1 Exhibit 2nd Cir Notice# 2 Exhibit Jan. 4, 2006 Order# 3 Memorandum in Support)(Domagalski, James) Modified on 9/19/2006 (DZ, ). (Entered: 09/18/2006)

E−Filing Notification: 149 AFFIRMATION of James P. Domagalski **Text modified on 9/19/2006 to indicate documenbt is an Affirmation, not an affidavit** (DZ, ). (DZ, ) (Entered: 09/19/2006)

E−Filing Notification: 147 AFFIRMATION − docket text amended to properly reflect that this filing was made by non−party witness and not defendants. (JMM) (Entered: 09/19/2006)

150

HONORABLE HUGH B. SCOTT

TEXT OF MINUTE ENTRY

For proceedings held before Magistrate Judge Hugh B. Scott:

Elmer Robert Keach, Esq., for plaintiffs; Frank Gaglione, Esq., for defendant Gipson; James Domalgalski, Esq., and Assistant County Attorney Kristin Klein Wheaton for County Defendants (present)

10/11/2006

Interim Pretrial Conference held on 10/11/2006. Plaintiffs made demand, which was rejected by defendants. Plaintiffs indicate demand will increase in light of events in the case. Settlement not possible at this time. (DRH) (Entered: 10/11/2006)

151

HONORABLE HUGH B. SCOTT

TEXT OF MINUTE ENTRY

For proceedings held before Magistrate Judge Hugh B. Scott:

Elmer Robert Keach, Esq., for plaintiffs; Richard Sullivan, Esq., for witness Machelor; Frank Gaglione, Esq., for defendant Gipson; present James Domalgalski, Esq., and Assistant County Attorney Kristin Klein Wheaton for County defendants.

10/11/2006

Motion Hearing held on 10/11/2006 re 140 MOTION Court Supervision of Deposition of Kristin Machelor filed by Adam Pritchard, Edward Robinson, et al., Court reserved decision. (DRH) (Entered: 10/11/2006)

152

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT ORDER re 139 Terminate Deadlines and Hearings, Text Order, Set Deadlines/Hearings

10/12/2006

At plaintiffs' request (and as stipulated by defendants), Replies now due by 10/20/2006. Motion Hearing remains set for Fri., 11/3/2006, 10:00 AM, before Hon. Hugh B. Scott. So Ordered. Signed by Hon. Hugh B. Scott on 10/11/2006. (DRH) (Entered: 10/11/2006)

153

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER denying 140 Motion

Plaintiffs' motion is denied; defendants' request either to preclude this deposition, restrict its content, or to conduct it with Court supervision is also denied. The deposition will be held on Fri., 11/24/2006, at 9:30 am, at a site to be determined by the parties within five (5) business days of entry of this Order. This deposition shall be conducted without Court supervision. Plaintiffs have a total of seven hours to conduct this deposition, inclusive of whatever continued examination may be subsequently authorized. So Ordered. Signed by Magistrate Judge Hugh B. Scott

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10/19/2006
10/20/2006 10/31/2006 11/01/2006 11/02/2006 11/02/2006 11/03/2006
12/07/2006

on 10/12/2006.

(Attachments: # 1 Appendix DirecTV v. Rowland, Order, Docket No. 45)

(DRH) (Entered: 10/12/2006)

154

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT ORDER re 130 Order, 139 Terminate Deadlines and Hearings, Text Order, Set Deadlines/Hearings, 152 Text Order, Set/Reset Motion and RRDeadlines/Hearings

Counsel for plaintiffs wrote to the Court on 10/18/2006 requesting leave (pursuant to this Court's Local Civil Rule 7.1(f)) to file a reply brief of up to 20 pages due to the volume of the response and prior agreement to oversize papers for this motion. This request is denied due to the volume of material received to date on this motion. So Ordered. Signed by Hon. Hugh B. Scott on 10/19/2006. (DRH) (Entered: 10/19/2006)

155 SEALED DOCUMENT pursuant to Order item #162 (Entered: 10/20/2006)

156 MOTION for Leave to File Excess Pages (For Permission to File and Serve A Supplemental Sur−Reply Affirmation) by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Attachments: # 1 Affidavit # 2 Exhibit to Affidavit)(Domagalski, James) (Entered: 10/31/2006)

157

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT ORDER denying 156 Motion for Leave to File Excess Pages

County Defendants' motion for permission to file and serve sur−reply papers is denied. So Ordered. Signed by Magistrate Judge Hugh B. Scott on 11/1/2006. (DRH) (Entered: 11/01/2006)

158 Sealed Document. (DZ, ) (Entered: 11/02/2006)

159 CONTINUATION OF EXHIBITS to 146 Text Order,, Copy of Decision In Re: Steinberg v. Rockland County, Case No.: 04−CV−4889, United States District Court for the Southern District of New York, as referenced in the Order of Magistrate Judge Hugh B. Scott on September 18, 2006 at docket entry 146. (Attachments: # 1 Certificate of Service)(Domagalski, James) (Entered: 11/02/2006)

160

HONORABLE HUGH B. SCOTT

TEXT OF MINUTE ENTRY

For proceedings held before Magistrate Judge Hugh B. Scott:

Elmer Robert Keach, III, Esq. (argued), Charles LaDuca, Esq., Alexandra Kohler, Esq., for plaintiffs; Frank Gaglione, Esq. (argued), James Domalgalski, Esq., Assistant County Attorney Kristin Klein Wheaton, Esq., for County defendants; Thomas D'Agostino, Esq., and Louis Dingledey, Esq., for defendant Gipson.

Motion Hearing held on 11/3/2006 re 131 MOTION to Certify Class filed by Adam Pritchard, Edward Robinson. Court reserved decision. (DRH) (Entered: 11/03/2006)

161

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

ORDER re 131 MOTION to Certify Class filed by Adam Pritchard, Edward Robinson

The Court requires supplemental briefing on In re Initial Public Offering Securities Litigation, Miles v. Merrill Lynch, No. 05−3349, and its impact on this pending motion to certify the class. Responses due by 1/19/2007. Court to determine if oral argument on this point will be necessary. Supplemental briefing is to be no longer

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01/08/2007
01/08/2007 01/08/2007
01/19/2007 01/19/2007 01/19/2007 01/19/2007
01/24/2007 01/29/2007 01/29/2007 01/31/2007 01/31/2007

than 25 pages. So Ordered. Signed by Hon. Hugh B. Scott on 12/7/2006. (Attachments: # 1 In re IPO Securities Litig., Miles v. Merrill Lynch, 2d Cir. opinion)(DRH) (Entered: 12/07/2006)
162 ORDER vacating the court's 4/17/2006 order pursuant to the motion for writ of mandamus which was granted by the United States Court of Appeals. The County defendants' objections to Magistrate Judge Scott's 1/4/2006 order are sustained. The documents containing the disputed communications shall be returned by plaintiffs forthwith to counsel for the County defendants and kept under seal. The Clerk is directed to seal Items 131, 132, and 155 (see contents of order for further instructions re documents). The court's order of 12/13/2004 (Item 5) referring this case to Magistrate Judge Scott is rescinded. Signed by Hon. John T. Curtin on 1/8/2007. (JEC). (Entered: 01/08/2007)
E−Filing Notification: Date of 162 ORDER was amended to indicate that order was signed by Hon. John T. Curtin on 1/8/2007. (JEC). (Entered: 01/08/2007)
163 Minute Entry for proceedings held before Judge John T. Curtin: Telephone conferences held with counsel on 1/8/2007 pursuant to the writ of mandamus issued by the Court of Appeals. Counsel were directed to submit simultaneous briefing on the waiver issue not later than 1/19/2007. The court will then review the submissions and set a date for a further conference. Appearances: Charles LaDuca, David Jay, Elmer Keach, and Jason Rozger for Plaintiffs; Frank Gaglione and Kristin Klein Wheaton for Defendants. Court time: 10:30 − 11:00 a.m.; 3:00 − 3:30 p.m. (JEC). (Entered: 01/11/2007)
164 Letter from Elmer Robert Keach III, Esq., dated 1/17/2007, to Hon. John T. Curtin requesting leave to file Machelor transcript under seal and an enlargement of time to file joint briefing. (JEC) (Entered: 01/19/2007)
165 Letter from James P. Domagalski, Esq., dated 1/18/2007, to Hon. John T. Curtin, in response to letter of Elmer Keach, Esq. (JEC) (Entered: 01/19/2007)
166 Letter from Thomas C. D'Agostino, dated 1/18/2007, to Hon. John T. Curtin, in response to letter of Elmer Keach, Esq. (JEC) (Entered: 01/19/2007)
167 TAKE NOTICE THAT, upon consideration of the matters set forth in recent correspondence from counsel (see Items 164−66), the court has found the proposal of plaintiff's counsel to be a reasonable accommodation under the circumstances. Accordingly, as soon as is practicable, after receipt of the Machelor deposition transcript, plaintiffs' counsel shall transmit a copy of the transcript to the court's chambers, along with a proposed sealing order. At the same time, a copy of the transcript shall be delivered to counsel for the County defendants. Plaintiffs are reminded of the court's prior direction to return any privileged documents to the County defendants "forthwith." The due date for simultaneous submission of the parties' current positions on the waiver issue is enlarged to Monday, January 29, 2007. (JEC) (Entered: 01/19/2007)
Motions No Longer Referred Magistrate Hugh Scott pursuant to instructions from chambers (JMM) (Entered: 01/24/2007)
168 Letter from Elmer Robert Keach III, Esq., dated January 29, 2007, to Hon. John T. Curtin, requesting an extension of time to file cross−submissions. (JEC) (Entered: 01/29/2007)
169 TAKE NOTICE THAT in response to the 168 Letter of Elmer Robert Keach, III, Esq., the time for the parties to file their cross−submissions on privilege and waiver issues is extended until THURSDAY, FEBRUARY 1, 2007. (JEC) (Entered: 01/29/2007)
170 Letter from James P. Domagalski, Esq., dated 1/31/2007, to Hon. John T. Curtin, regarding a further extension of time to file cross−submissions. (JEC) (Entered: 01/31/2007)
171 Letter from Elmer Robert Keach III, Esq., dated 1/31/2007, to Hon. John T. Curtin, regarding a further extension of time to file cross−submissions. (JEC) (Entered: 01/31/2007)

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 33 of 45

01/31/2007 02/02/2007 02/02/2007 02/02/2007
02/02/2007 02/03/2007
02/05/2007 02/06/2007 02/07/2007

172 TAKE NOTICE THAT pursuant to the Letters of Counsel (Items 171 &170), the Court grants a further extension of time in which to file cross−submissions until Friday, February 2, 2007. (JEC) (Entered: 01/31/2007)
173 DECLARATION filed by H. McCarthy Gibson re: submission on issue of waiver of attorney−client privilege. (Attachments: # 1)(Dingeldey, Louis) (Entered: 02/02/2007)
174 MEMORANDUM/BRIEF re: submission on issue of waiver of attorney−client privilege by H. McCarthy Gibson. (Dingeldey, Louis) (Entered: 02/02/2007)
175 MEMORANDUM IN SUPPORT re 162 Terminate Case Associations,,, Set/Clear Flags,,, Order,,, 172 Notice (Other), 163 Status Conference,,, Set Deadlines/Hearings,, County Defendants' Memorandum of Law on Attorney−Client Privilege and Lack of Waiver byThe County of Erie. (Attachments: # 1 Affirmation of James P. Domagalski Regarding Privileged Communications and Lack of Waiver with attached Exhibit A# 2 Declaration of Timothy Howard with attached Exhibit A# 3 Declaration of Patrick Galivan with attached Exhibit A# 4 Declaration of Brian Doyle with attached Exhibit A# 5 Declaration of Donald Livingston with attached Exhibit A# 6 Declaration of Jeffrey Hartman with attached Exhibit A# 7 Declaration of Glen Isch with attached Exhibit A# 8 Declaration of Paul Glinski with attached Exhibit A# 9 Declaration of Keith Kibler with attached Exhibit A# 10 Declaration of Kevin Lynch with asttached Exhibit A# 11 Declaration of Frank Odee with attached Exhibit A# 12 Declaration of John Roseti with attached Exhibit A# 13 Declaration of Thomas Vaughan with attached Exhibit A# 14 Declaration of David Webster with attached Exhibit A# 15 Declaration of Howard Webster with attached Exhibit A# 16 Certificate of Service)(Domagalski, James) (Entered: 02/02/2007)
176 MOTION to Compel Production of the Machelor Email on the Basis of Waiver by Adam Pritchard, Edward Robinson.(Keach, Elmer) (Entered: 02/02/2007)
177 Amended MOTION to Compel Regarding Machelor Emails by Adam Pritchard, Edward Robinson. (Attachments: # 1 Affirmation in Support of Motion# 2 Exhibit A −− Defendants' Memorandum in Opposition to Class Cert# 3 Exhibit B, Part 1 −− Deposition of T. Howard, pp. 1−34# 4 Exhibit B, Part Two, Howard Deposition, pp. 35−73# 5 Exhibit B, Part 3, Howard Deposition, pp. 74−95# 6 Exhibit C, Partial Gallivan Deposition# 7 Exhibit D, Buffalo News Article# 8 Exhibit E, Gipson Email, 3.20.03# 9 Exhibit F, Email from Gipson to Gallivan and Howard, 12.31.03# 10 Exhibit G, Gipson Memo on Strip Seaches on Admission, 8.27.03# 11 Exhibit H, Livingston Deposition Transcript# 12 Exhibit I, redacted inmate records# 13 Exhibit J, Gipson 4.6.06 Deposition Trancript# 14 Exhibit K, Plaintiffs First Demand for Documents# 15 Exhibit L, Email initially produced by Erie County# 16 Exhibit M, Isch Strip Search Memorandum# 17 Exhibit N, Portion of Isch Deposition Transcript# 18 Exhibit O, Part I, Usinski Dep., pp. 1−50# 19 Exhibit O, part 2, usinski deposition, pp. 51−100# 20 Exhibit P, email from Keach to Dingeldey, 1.16.07# 21 Exhibit Q, email from dingeldey to keach, 1.18.07# 22 Exhibit R, email from Keach to Domagalski, 1.16.07# 23 Exhibit S, Email from Keach to Domagalski, 01.18.07# 24 Exhibit T, Yahoo Account Verification# 25 Exhibit U, Plaintiffs Second Demand for Documents# 26 Exhibit V, Plaintiffs Third Demand for Documents# 27 Exhibit W, Gipson Response to Demand for Documents# 28 Exhibit X, email from livingston to Gipson, 5.1.2003# 29 Exhibit Y, email from Gipson to Livingston, 3.20.2003# 30 Exhibit Z, letter from Keach to Domagalski, 11.7.05# 31 Exhibit AA, letter from Domagalski to Keach, 11.14.05# 32 Exhibit BB, Court Order, 6.26.06# 33 Exhibit CC, Defendants' Amended Privilege Log# 34 Exhibit DD, Unreported Decisions# 35 Memorandum in Support # 36 Certificate of Service)(Keach, Elmer) (Entered: 02/03/2007)
178 Letter from Elmer Robert Keach III, Esq., dated 2/5/2007, to Hon. John T. Curtin re further extension of time. (JEC) (Entered: 02/05/2007)
179 Letter from James P. Domagalski, Esq., dated 02/05/2007, to Hon. John T. Curtin regarding further extension of time. (JEC) (Entered: 02/06/2007)
180 Letter from Thomas C. D'Agostino, Esq., dated 02/07/2007, to Hon. John T. Curtin re further extension of time. (JEC) (Entered: 02/07/2007)

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 34 of 45

02/16/2007 02/16/2007 03/02/2007
03/06/2007
03/19/2007 03/19/2007 03/20/2007 03/26/2007 04/02/2007
04/09/2007 04/09/2007 04/19/2007 04/23/2007 04/23/2007

181 Letter from Elmer Robert Keach III, Esq., dated 02/13/2007, to Hon. John T. Curtin (Attachments: # 1) re Discovery Dispute.(JEC) (Entered: 02/16/2007)
182 Letter from James P. Domagalski, Esq., dated 2/16/2007, to Hon. John T. Curtin re Discovery Dispute. (JEC) (Entered: 02/16/2007)
183 ORDER denying Plaintiff's request for leave to file a motion to compel the production of additional e−mail correspondence, without prejudice to renew pending the resolution of the waiver issue. Accordingly, Defendants shall file supplemental memoranda of law by 3/19/2007; Plaintiffs shall file a responding memo of law by 4/9/2007; and Defendants' replies, if any, shall be filed by 4/23/2007. Oral Argument shall be held on 4/30/2007 at 11:00 AM before Hon. John T. Curtin. Signed by Hon. John T. Curtin on 02/22/2007. (JEC) (Entered: 03/02/2007)
184 MANDATE of the USCA granting the Motion for a writ of mandamus ordering the U.S. District Court for the WDNY to vacate an order compelling production of communications asserted to be protected by the attorney−client privilege; the district court's April 17, 2006 is vacated; the district court is instructed to determine whether the attorney−client privilege was nonetheless waived; pending adjudication, the district is directed to enter an order protecting the confidentiality of the disputed e−mails in accordance with the opinion of the court. (DR, ) (Entered: 03/06/2007)
185 MEMORANDUM IN OPPOSITION re 183 Order,,, Set Deadlines/Hearings,,, 184 Order,, Defendant H. McCarthy Gipson's Supplemental Memorandum of Law by H. McCarthy Gibson. (Boron, Eric) (Entered: 03/19/2007)
186 MEMORANDUM/BRIEF re 183 Order,,, Set Deadlines/Hearings,,, 184 Order,, by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Domagalski, James) (Entered: 03/19/2007)
187 STIPULATION to file a copy of the deposition transcript of Kristin Machelor under seal. by Adam Pritchard, Edward Robinson, Julenne Tucker. (Menken, Bruce) (Entered: 03/20/2007)
188 NOTICE by Adam Pritchard, Edward Robinson of Change of Address and Firm Name for Alexander E. Barnett and Change of Firm Name for Gary E. Mason (Barnett, Alexander) (Entered: 03/26/2007)
189 STIPULATION AND ORDER directing Plaintiffs to file a copy of the Kristin Machelor deposition transcript under seal, with a designation of "CONFIDENTIAL" prominently affixed to the cover of the transcript with the Clerk of the Court. Signed by Hon. John T. Curtin on 03/26/2007. (JEC) (Entered: 04/02/2007)
190 First MOTION for Leave to Appear Pro Hac Vice of Alexandra C. Warren by Adam Pritchard, Edward Robinson, Julenne Tucker.(LaDuca, Charles) (Entered: 04/09/2007)
191 MEMORANDUM in Support re 177 Amended MOTION to Compel Regarding Machelor Emails Filed Pursuant to Court Order filed by Adam Pritchard, Edward Robinson. (Attachments: # 1 Certificate of Service)(Keach, Elmer) (Entered: 04/09/2007)
NOTICE OF HEARING ON PENDING MOTIONS: Motion Hearing set for 4/30/2007 09:30 A.M. before Hon. John T. Curtin, rescheduled from 11:00 A.M. (JEC) (Entered: 04/19/2007)
NOTICE of Hearing on Motion: TAKE NOTICE THAT the Oral Argument on the Pending Motions has been adjourned from April 30, 2007 until MONDAY, MAY 14, 2007, AT 10 A.M.(JEC) (Entered: 04/23/2007)
192 MEMORANDUM/BRIEF re 183 Order,,, Set Deadlines/Hearings,, Reply Memorandum of Law on Issue of Waiver of Privilege by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Domagalski, James) (Entered: 04/23/2007)

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 35 of 45

04/23/2007 04/23/2007 04/23/2007 04/23/2007 04/23/2007 05/01/2007 05/04/2007 05/14/2007
06/12/2007 06/21/2007 06/26/2007
06/29/2007
07/16/2007
07/16/2007
07/16/2007

193 ORDER granting 190 Motion of Alexandra C. Warren, Esq., for Leave to Appear Pro Hac Vice, provided that prompt payment of the fee in the amount of $75.00 is made to the Clerk of the Court. Signed by Judge John T. Curtin on 04/19/2007. (JEC) (Entered: 04/23/2007)
194 MEMORANDUM/BRIEF re 183 Order,,, Set Deadlines/Hearings,, Reply Memorandum of Law Relating to the Court's February 22, 2007 Order by H. McCarthy Gibson. (Boron, Eric) (Entered: 04/23/2007)
Set Deadlines/Hearings: Oral argument rescheduled for 5/14/2007 10:00 AM before Hon. John T. Curtin. (DZ, ) (Entered: 04/24/2007)
195 ORDER directing that the deposition transcript of Kristen Machelor be filed under seal. Signed by Hon. John T. Curtin on 4/19/07. (DZ, ) (Entered: 04/25/2007)
196 Sealed Document. (DZ, ) (Entered: 04/25/2007)
{Pro Hac Vice Filing fee paid for Alexandra C. Warren: $ 75.00, receipt number 2770 (DZ, ) (Entered: 05/02/2007)
197 STATEMENT OF COSTS of the USCA taxed in the amount of $1590.00 in favor of Petitioner, The County of Erie. This Statement of Costs is made part of the Mandate of the USCA issued on 2/27/07 and filed in the U.S. District Court on 3/6/07 Document #184. (DR, ) (Entered: 05/04/2007)
198 Minute Entry for proceedings held before Judge John T. Curtin: Motion Hearing held on 5/14/2007 re Issue of Waiver of Privileged Documents. Motion submitted. Appearances: Elmer (Robert) Keach, Charles LaDuca, Frank Gaglione, James Domagalski, Eric Boron, and Kristin Klein Wheaton. Court time: 10:00 − 10:45 a.m. (Electronic Court Recorder Operator Janet Curry) (JEC) (Entered: 05/15/2007)
199 DECISION AND ORDER denying Plaintiffs' Motion to Compel Production of documents (see Item 25). A Status Conference is set for 6/27/2007 10:00 a.m. before Hon. John T. Curtin. Signed by Hon. John T. Curtin on 06/11/2007. (JEC) (Entered: 06/12/2007)
TAKE NOTICE THAT the Telephone Conferenced scheduled for 6/27/2007 is hereby canceled. (JEC) (Entered: 06/21/2007)
200 MOTION for Reconsideration re 199 Order, Set Deadlines/Hearings by Adam Pritchard, Edward Robinson. (Attachments: # 1 Affirmation# 2 Exhibit A, part 1−−Defendants' Mandamus Petition# 3 Exhibit A, Part 2# 4 Exhibit A, Part 3# 5 Exhibit A, Part 4# 6 Exhibit B, Plaintiffs' Response to Mandamus Petition# 7 Memorandum in Support # 8 Certificate of Service)(Keach, Elmer) (Entered: 06/26/2007)
201 ORDER directing counsel to file a Response to Plaintiffs' Motion for Reconsideration by 7/16/2007. Plaintiffs' Reply, if desired, shall be filed by 7/30/2007. The court will then consider the motion submitted or set a date for oral argument. Signed by Hon. John T. Curtin on 06/28/2007. (JEC) Modified on 7/25/2007−−response due 7/16; reply due 7/30 (Curry, Janet). (Entered: 06/29/2007)
202 AFFIDAVIT of James P. Domagalski in Opposition re 200 MOTION for Reconsideration re 199 Order, Set Deadlines/Hearings MOTION for Reconsideration re 199 Order, Set Deadlines/Hearings with Certificate of Service filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Domagalski, James) (Entered: 07/16/2007)
203 MEMORANDUM in Opposition re 200 MOTION for Reconsideration re 199 Order, Set Deadlines/Hearings MOTION for Reconsideration re 199 Order, Set Deadlines/Hearings with Certificate of Service filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Domagalski, James) (Entered: 07/16/2007)
204 AFFIDAVIT Affirmation of Eric T.Boron in Opposition re 200 MOTION for Reconsideration re 199 Order, Set Deadlines/Hearings MOTION for Reconsideration re 199 Order, Set Deadlines/Hearings with Certificate of Service

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 36 of 45

07/16/2007 07/24/2007 07/30/2007 08/01/2007 08/07/2007 08/16/2007 10/23/2007 10/30/2007
10/31/2007
10/31/2007 11/30/2007
11/30/2007 12/06/2007
12/07/2007

filed by H. McCarthy Gibson. (Boron, Eric) (Entered: 07/16/2007)
205 MEMORANDUM in Opposition re 200 MOTION for Reconsideration re 199 Order, Set Deadlines/Hearings MOTION for Reconsideration re 199 Order, Set Deadlines/Hearings with Certificate of Service filed by H. McCarthy Gibson. (Boron, Eric) (Entered: 07/16/2007)
206 MOTION for Leave to Appear Pro Hac Vice of Nicholas A. Migliaccio by Adam Pritchard, Edward Robinson, Julenne Tucker. (Attachments: # 1 Affidavit of Nicholas A. Migliaccio# 2 Text of Proposed Order)(Barnett, Alexander) (Entered: 07/24/2007)
207 REPLY to Response to Motion re 200 MOTION for Reconsideration re 199 Order, Set Deadlines/Hearings MOTION for Reconsideration re 199 Order, Set Deadlines/Hearings filed by Adam Pritchard, Edward Robinson. (Attachments: # 1 Certificate of Service)(Keach, Elmer) (Entered: 07/30/2007)
208 ORDER granting 206 Motion of Nicholas A. Migliaccio, Esq., for Leave to Appear Pro Hac Vice in this case. Signed by Judge John T. Curtin on 08/01/2007. (JEC) (Entered: 08/01/2007)
Filing fee: $ 75, receipt number 4032, pro hac vice filing fee from Nicholas Migliaccio counsel for plaintiffs (JDK) (Entered: 08/07/2007)
NOTICE of Hearing on Motion 200 MOTION for Reconsideration: ORAL ARGUMENT set for 10/29/2007 10:00 AM before Hon. John T. Curtin. (JEC) (Entered: 08/16/2007)
NOTICE OF HEARING ON MOTION: ORAL ARGUMENT ON MOTION FOR RECONSIDERATION, originally scheduled for 10/29/2007, is adjourned until 10/30/2007 at 10 a.m. before Hon. John T. Curtin. (JEC) (Entered: 10/23/2007)
209 Minute Entry for proceedings held before Judge John T. Curtin: Oral Argument held on 10/30/2007 on 200 MOTION for Reconsideration. Motion submitted. Appearances: Elmer Robert Keach for Plaintiff; James Domagalski and Eric Boron for Defendants. Court time: 10:20 − 11:20 a.m. (Janet Curry, Electronic Court Recorder Operator.) (JEC) (Entered: 10/31/2007)
210 DECISION AND ORDER granting 200 Plaintiffs' Motion for Reconsideration. Defense counsel shall provide the court and Plaintiffs' Counsel a list of documents produced or withheld, along with appropriate privilege log. Plaintiffs' responding affidavit shall be filed by 12/7/2007. The court will then issue an order addressing Plaintiffs' deposition request and setting a further schedule. Signed by Judge John T. Curtin on 10/31/2007. (JEC) (Entered: 10/31/2007)
Set/Reset Deadlines: Defense Counsel document list due by 11/30/2007; Plaintiffs' Responding Affidavit due by 12/7/2007. (JEC) (Entered: 10/31/2007)
211 AFFIRMATION signed by James P. Domagalski re Set/Reset Deadlines, 210 Order on Motion for Reconsideration, filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Attachments: # 1 Exhibit Exhibit A to D (part 1)# 2 Exhibit D (part 2)# 3 Exhibit E through H (part 1)# 4 Exhibit H (part 2))(Domagalski, James) (Entered: 11/30/2007)
212 AFFIRMATION signed by. filed by H. McCarthy Gibson filed by H. McCarthy Gibson. (Attachments: # 1 Exhibit Privilege Log# 2 Certificate of Service)(Boron, Eric) (Entered: 11/30/2007)
213 MOTION to Stay re 210 Order on Motion for Reconsideration, with Certificate of Service by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Attachments: # 1 Affidavit of James P. Domagalski in Support of Motion to Stay# 2 Exhibit A to Affidavit of James P. Domagalski# 3 Memorandum in Support)(Domagalski, James) (Entered: 12/06/2007)
214 ORDER granting Plaintiffs' Counsel an enlargement of time until 12/21/2007 to file Affidavit responding to County's submission regarding documents produced or withheld. Signed by Hon. John T. Curtin on 12/7/2007. (JEC) (Entered:

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 37 of 45

12/17/2007 12/21/2007
12/21/2007 01/11/2008 01/15/2008 01/15/2008
06/02/2009 06/05/2009 06/05/2009 06/05/2009 06/08/2009 06/16/2009 06/18/2009 06/29/2009 06/29/2009

12/07/2007)
215 ORDER granting 213 Defendants' Motion to Stay the court's order of 10/31/2007 (Item 210) directing Defendants to produce documents, pending notification by the parties as to the outcome of Defendants' petition for mandamus review. Signed by Judge John T. Curtin on 12/13/2007. (JEC) (Entered: 12/17/2007)
216 AFFIRMATION signed by Elmer Robert Keach, III re 212 Affirmation, 210 Order on Motion for Reconsideration, 211 Affirmation, filed by Adam Pritchard, Edward Robinson. (Attachments: # 1 Exhibit A −− Plaintiffs' First Demand for Production of Documents# 2 Exhibit B −− Plaintiffs' Second Demand for Production of Documents# 3 Exhibit C −− Email Originally Produced by Erie County# 4 Exhibit D −− Def. Gipson response to Demand for Documents# 5 Exhibit E −− Gipson Email, 12.31.03# 6 Exhibit F −− Livingston Email, May 1, 2003# 7 Exhibit G −− Gipson Email, 3.20.2003# 8 Exhibit H −− Letter from Keach to Domagalski, 11.7.2005# 9 Exhibit I −−− Letter from Domagalski to Keach, 11.14.2005# 10 Exhibit J −− Order of Honorable Hugh Scott, 6.26.2006# 11 Exhibit K, part 1 −− Howard Deposition, pp. 1−34# 12 Exhibit K, part 2 −− Howard Dep., pp. 35−73# 13 Exhibit K, Part 3 −− Howard Dep., pp. 74−95# 14 Exhibit L −− Gipson 4.6.06 Deposition# 15 Exhibit M, Part 1 −− Usinski Dep., pp. 1−50# 16 Exhibit M, part 2 −− Usinski Dep. pp. 51−100)(Keach, Elmer) (Entered: 12/21/2007)
217 CERTIFICATE OF SERVICE by Adam Pritchard, Edward Robinson re 216 Affirmation,,,, (Keach, Elmer) (Entered: 12/21/2007)
218 CONTINUATION OF EXHIBITS to 211 Affirmation, Complete and Corrected Copy of Exhibits A to D. (Domagalski, James) (Entered: 01/11/2008)
E−Filing Notification: Entire e−filing must be refiled including the Affirmation and corrected exhibits. 218 CONTINUATION OF EXHIBITS to 211 Affirmation, Complete and Corrected Copy of Exhibits A to D. (Domagalski, James) (SG) (Entered: 01/15/2008)
219 AFFIDAVIT of James P. Domagalski re: Court's 10/31/07 Order with Corrected Exhibits and Updated Certificate of Service by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Attachments: # 1 Exhibit A to D# 2 Exhibit E to Part 1 of H# 3 Exhibit Part 2 of H)(Domagalski, James) (Entered: 01/15/2008)
220 NOTICE of Appearance by Bethany B. Schumann−McGhee on behalf of all plaintiffs (Schumann−McGhee, Bethany) (Entered: 06/02/2009)
221 Letter from Elmer Robert Keach III, Esq., dated 6/1/2009, to Hon. John T. Curtin. (JEC) (Entered: 06/05/2009)
NOTICE of Hearing: Status Conference set for 6/29/2009 at 10:30 a.m. before Hon. John T. Curtin. The court will initiate the call.(JEC) (Entered: 06/05/2009)
222 MOTION for Leave to Appear Pro Hac Vice Brendan S. Thompson by Adam Pritchard, Edward Robinson, Julenne Tucker.(LaDuca, Charles) (Entered: 06/05/2009)
Confirmed Admission to the Maryland State Bar for Brendan S. Thompson (SG) (Entered: 06/08/2009)
223 ORDER granting 222 Motion to admit Brendan S. Thompson pro hac vice provided that prompt payment of $75.00 is made to the Clerk of the Court. Signed by Hon. John T. Curtin on 6/15/2009. (JEC) (Entered: 06/16/2009)
Pro Hac Vice Filing fee paid for Brendan Thompson: $ 75.00, receipt number 13286 (DZ) (Entered: 06/22/2009)
224 Letter from James P. Domagalski, Esq., dated 6/26/2009, to Hon. John T. Curtin in response to 221 Letter of Elmer Robert Keach III, Esq., dated 6/1/2009. (JEC) (Entered: 06/29/2009)
226 Minute Entry for proceedings held before Hon. John T. Curtin: Status Telephone Conference held on 6/29/2009 re the status of this litigation. Plaintiffs' counsel requested a Rule 30(b)(6) deposition of the appropriate County records officer to

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 38 of 45

07/01/2009 07/07/2009 07/10/2009
08/13/2009 08/13/2009 08/13/2009 08/13/2009
08/27/2009 08/27/2009
08/27/2009 09/01/2009

determine the discoverability of additional e−mail communications, and defense counsel objected and seeks a schedule for renewal of the class certification motion. The court directed further clarification of these requests in writing, to be submitted promptly. Appearances: Elmer Robert Keach III, Charles LaDuca, Bruce Menken, Gary Mason, Nicholas Migliaccio, David Jay for Plaintiffs; James Domagalski and Thomas DAgostino for Defendants. Court time: 10:30 − 11:15 a.m. (JEC) (Entered: 07/02/2009)
225 Letter from Elmer Robert Keach III, Esq., dated 6/30/2009, to Hon. John T. Curtin detailing status of request to take additional deposition of Erie County. (Attachments: # 1 Copy of Notice of Deposition) (JEC) (Entered: 07/01/2009)
227 Letter from James P. Domagalski, Esq., dated 7/7/2009, to Hon. John T. Curtin in response to 225 Letter of Elmer Robert Keach III, Esq. dated 6/30/2009. (JEC) (Entered: 07/07/2009)
228 ORDER denying Plaintiffs' request for an additional Rule 30(b)(6) deposition and directing Plaintiffs to file their renewed Motion for Class Certification by 8/14/2009. Defense counsel shall file a Response by 9/14/2009. The court will consider a schedule for hearing and argument. This order shall be deemed sufficient to protect the confidentiality of the aforementioned ten privileged e−mail communications, in compliance with the circuit court's directions in In re County of Erie, 546 F.3d at 30. Signed by Hon. John T. Curtin on 7/10/2009. (JEC) (Entered: 07/10/2009)
229 Letter from Elmer Robert Keach, III, Esq., dated 8/12/2009, to Hon. John T. Curtin requesting extension of time to file Motion for Class Certification. (JEC) (Entered: 08/13/2009)
230 REPLY/RESPONSE to re 229 Letter filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Domagalski, James) (Entered: 08/13/2009)
231 Letter from James P. Domagalski, Esq., dated 8/13/2009, to Hon. John T. Curtin re 229 Letter request of Elmer Robert Keach, III, Esq. for extension of time. (JEC) (Entered: 08/13/2009)
232 TEXT ORDER: The court grants the Plaintiffs' request for an extension of time as follows: Plaintiffs' Motion for Class Certification shall be filed by 8/28/2009; Defendants' Response shall be filed by 10/12/2009; and Plaintiffs' Reply shall be filed by 10/26/2009. The court notes without comment Defendants' 230 Letter dated 8/13/2009. SO ORDERED. Signed by Hon. John T. Curtin on 8/13/2009. (JEC) (Entered: 08/13/2009)
233 Letter from Elmer Robert Keach, III, Esq., dated 8/26/2009, to Hon. John T. Curtin re four−day extension of time to file Motion for Class Certification. (JEC) (Entered: 08/27/2009)
234 TEXT ORDER: The Plaintiffs' 233 Letter Request for a four−day extension of time in which to file their Motion for Class Certification is granted. Therefore, the time for Plaintiffs to file such Motion is extended until 9/1/2009. Likewise, the time for Defendants to file a Response to the Motion is extended until 10/16/2009, and the time for Plaintiffs to file a Reply is extended until 10/30/2009. Signed by Hon. John T. Curtin on 8/27/2009. (JEC) (Entered: 08/27/2009)
Set/Reset Deadlines: Motion due by 9/1/2009; Response due by 10/16/2009; Reply due by 10/30/2009. (JEC) (Entered: 08/27/2009)
235 MOTION to Certify Class by Adam Pritchard, Edward Robinson. (Attachments: # 1 Affirmation of Elmer Keach in Support of Motion for Class Certification, # 2 Exhibit A−− Plaintiffs' Class Action Complaint, # 3 Exhibit B −− 2004 Sheriff's Annual Report, # 4 Exhibit C, Part 1 −− Gipson Deposition, Day One, pp. 1−90, # 5 Exhibit C, Part Two −− Gipson Deposition, Day One, pp. 91−end, # 6 Exhibit D −− Department of Justice Report, # 7 Exhibit E −− ECCF Strip Search Policy, # 8 Exhibit F, Part One, Gallivan Deposition, pp. 1−50, # 9 Exhibit F, Part Two − Gallivan Deposition, pp. 51−100, # 10 Exhibit F, Part Three −− Gallivan Deposition, pp. 101−end, # 11 Exhibit G −− ECHC Strip Search Policy, # 12

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 39 of 45

09/01/2009
09/01/2009 09/01/2009 09/03/2009 09/03/2009 09/03/2009 09/03/2009 10/16/2009
10/16/2009 10/16/2009

Exhibit H −− Contraband Control Policy, # 13 Exhibit I −− Daniel Harig Deposition, # 14 Exhibit J −− Amina Robinson Declaration, # 15 Exhibit K −− Amina Robinson Deposition, # 16 Exhibit L, Part One −− Wegryn Depostion, pp. 1−46, # 17 Exhibit L, Part Two −− Wegryn Deposition, pp. 47−end, # 18 Exhibit M −− Edward Robinson Deposition, # 19 Exhibit N −− Partial Deposition Transcript, Adam Pritchard, # 20 Exhibit O −− Declarations of Class Members, # 21 Exhibit P −− Stephen Poodry Deposition)(Keach, Elmer) (Entered: 09/01/2009)
236 **Please note that pursuant to order filed on 6/11/2010, Exhibit Y has been removed from this entry. CONTINUATION OF EXHIBITS to 235 MOTION to Certify Class. (Attachments: # 1 Exhibit Q, Part One −− Mosco Hough, pp. 1−50, # 2 Exhibit Q, Part Two −− Mosco Hough, pp. 51−80, # 3 Exhibit Q, Part Three −− Mosco Hough, pp. 81−119, # 4 Exhibit Q, Part Four −− Mosco Hough, pp. 120 − end, # 5 Exhibit R, Part One −− Tiffany Barlow Deposition, pp. 1−50, # 6 Exhibit R, Part Two −− Tiffany Barlow, pp. 51−80, # 7 Exhibit S −− Livingston May 1, 2003 email, # 8 Exhibit T, Part One −− Livingston Deposition, pp. 1−50, # 9 Exhibit T, Part Two −− Donald Livingston Deposition, pp. 51−90, # 10 Exhibit T, Part Three −− Donald Livingston, pp. 92−150, # 11 Exhibit T, Part Four −− Donald Livingston, pp. 151−end, # 12 Exhibit U −− Gipson August 2003 Memorandum, # 13 Exhibit V −− Email between Gipson and Kowalczyk, # 14 Exhibit w −− email exchange, Gipson, Gallivan and Howard, # 15 Exhibit X −− Erie County Original Answer, # # 17 Exhibit Z −− Class Certification Decision, Delandro v. County of Allegheny, # 18 Exhibit AA −− Firm Resumes, Class Counsel, # 19 Exhibit BB −− Bench Decision, Tyson v. City of New York)(Keach, Elmer) Modified on 6/18/2010 (JMM). (Entered: 09/01/2009)
237 MEMORANDUM IN SUPPORT re 235 MOTION to Certify Class To Be Corrected to Provide Tables on September 2, 2009 byAdam Pritchard, Edward Robinson. (Keach, Elmer) (Entered: 09/01/2009)
238 CERTIFICATE OF SERVICE by Adam Pritchard, Edward Robinson re 236 Continuation of Exhibits,,,, 237 Memorandum in Support, 235 MOTION to Certify Class (Keach, Elmer) (Entered: 09/02/2009)
239 MEMORANDUM IN SUPPORT re 235 MOTION to Certify Class Corrected to Include Tables byAdam Pritchard, Edward Robinson. (Keach, Elmer) (Entered: 09/03/2009)
240 CERTIFICATE OF SERVICE by Adam Pritchard, Edward Robinson re 239 Memorandum in Support (Keach, Elmer) (Entered: 09/03/2009)
241 NOTICE by Adam Pritchard, Edward Robinson of Change of Firm Name and Address (Migliaccio, Nicholas) (Entered: 09/03/2009)
242 NOTICE by Adam Pritchard, Edward Robinson re 241 Notice (Other) certificate of service for Notice of Change of Firm Name and Address (Migliaccio, Nicholas) (Entered: 09/03/2009)
243 DECLARATION signed by James P. Domagalski re 237 Memorandum in Support, 235 MOTION to Certify Class filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan in opposition to motion for class certification filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Attachments: # 1 Exhibit 1 to 7, # 2 Exhibit 8 to 26, # 3 Exhibit 27 to 49, # 4 Exhibit 50 to 61, # 5 Exhibit 62 to 66)(Domagalski, James) (Entered: 10/16/2009)
244 AFFIRMATION signed by Frank T. Gaglione re 237 Memorandum in Support, 235 MOTION to Certify Class filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan in opposition to motion for class certification filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Domagalski, James) (Entered: 10/16/2009)
245 MEMORANDUM in Opposition re 235 MOTION to Certify Class filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, H. McCarthy Gibson, The County of Erie, Patrick M. Gallivan. (Domagalski, James) (Entered: 10/16/2009)

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10/16/2009 10/16/2009 10/16/2009
10/16/2009 10/16/2009 10/16/2009
10/20/2009 11/03/2009 11/03/2009 11/03/2009 11/06/2009 11/06/2009 11/10/2009 11/10/2009

246 CERTIFICATE OF SERVICE by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan re 245 Memorandum in Opposition to Motion, 244 Affirmation, 243 Declaration,, (Domagalski, James) (Entered: 10/16/2009)
247 MOTION to Strike 236 Continuation of Exhibits,,,, 237 Memorandum in Support, 235 MOTION to Certify Class with Certificate of Service by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan.(Domagalski, James) (Entered: 10/16/2009)
248 AFFIRMATION re 247 MOTION to Strike 236 Continuation of Exhibits,,,, 237 Memorandum in Support, 235 MOTION to Certify Class with Certificate of Service MOTION to Strike 236 Continuation of Exhibits,,,, 237 Memorandum in Support, 235 MOTION to Certify Class with Certificate of Service filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan in Support of Motion with Exhibits. (Domagalski, James) (Entered: 10/16/2009)
249 This item has been removed from the record pursuant to the order filed on 6/11/2010. There is no item #249 on this case. (Entered: 10/16/2009)
250 AFFIRMATION signed by Thomas C. D'Agostino, Esq. filed by H. McCarthy Gibson in opposition filed by H. McCarthy Gibson. (D'Agostino, Thomas) (Entered: 10/16/2009)
E−Filing Notification: Username and signature do not match (refer to Administrative Procedures Guide Section 1−3c). Action required: re−file document using same signature and password and file updated proof of service. 244 AFFIRMATION signed by Frank T. Gaglione re 237 Memorandum in Support, 235 MOTION to Certify Class filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan in opposition to motion for class certification filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan. (Domagalski, James) (DR) (Entered: 10/19/2009)
251 NOTICE of Appearance by Jonathan Schapp on behalf of H. McCarthy Gibson (Schapp, Jonathan) (Entered: 10/20/2009)
252 Letter from Elmer Robert Keach, III, Esq., dated 11/2/2009, to Hon. John T. Curtin requesting a five−day extension of time in which to file Reply. (JEC) (Entered: 11/03/2009)
253 TAKE NOTICE THAT pursuant to 252 Letter of Elmer Robert Keach III, Esq., and there being no opposition from Defense Counsel, the time for Plaintiffs' Counsel to file a Reply is extended from 10/30/2009 until 11/6/2009. (JEC) (Entered: 11/03/2009)
Set/Reset Deadlines: Replies due by 11/5/2009. (JEC) (Entered: 11/03/2009)
254 Letter from Elmer Robert Keach, Esq., dated 11/6/2009, to Hon. John T. Curtin requesting one additional day, until 11/9/2009, in which to file reply papers on their Motion for Class Certification. (JEC) (Entered: 11/06/2009)
255 TAKE NOTICE THAT pursuant to 254 Letter of Elmer Robert Keach III, Esq., the time for Plaintiffs' Counsel to file a Reply is extended from 11/06/2009 until 11/9/2009. (JEC) (Entered: 11/06/2009)
256 MEMORANDUM in Support re 235 MOTION to Certify Class Reply Memorandum in Support of Plaintiffs Motion for Class Certification filed by Adam Pritchard, Edward Robinson. (Keach, Elmer) (Entered: 11/10/2009)
257 REPLY to Response to Motion re 235 MOTION to Certify Class filed by Adam Pritchard, Edward Robinson. (Attachments: # 1 Exhibit CC, Part 1 −− 4.6.06 Gipson Transcript, pp. 1−45, # 2 Exhibit CC, part 2 −− 4.6.06 Gipson Transcritp, pp. 46−81, # 3 Exhibit DD −− female detainee clothing forms, # 4 Exhibit EE, Part 1 −− Brian Patti Deposition, # 5 Exhibit EE, Part 2 −− Brian Patti Deposition, # 6 Exhibit FF −− Class Representative Booking Information)(Keach, Elmer) (Entered: 11/10/2009)

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11/10/2009 11/19/2009 11/30/2009 12/07/2009 01/28/2010 01/28/2010 01/28/2010 01/28/2010 02/05/2010 02/05/2010
02/19/2010 03/24/2010
04/06/2010 04/06/2010 04/09/2010 04/23/2010

258 CERTIFICATE OF SERVICE by Adam Pritchard, Edward Robinson re 256 Memorandum in Support of Motion, 257 Reply to Response to Motion, (Keach, Elmer) (Entered: 11/10/2009)
NOTICE OF HEARING ON MOTION: ORAL ARGUMENT on the pending motions shall be heard on 12/17/2009 at 10:45 a.m.(JEC) (Entered: 11/19/2009)
NOTICE of Hearing on Motion−− 235 MOTION to Certify Class: At the request of Plaintiffs' Counsel, and there being no objection from Defense Counsel, ORAL ARGUMENT scheduled in this case for 12/17/2009 is hereby rescheduled to 12/15/2009 at 10:30 a.m. (JEC) (Entered: 11/30/2009)
TAKE NOTICE THAT the ORAL ARGUMENT currently scheduled for 12/15/2009 is adjourned generally. The court will notify counsel of a new schedule in the near future. (JEC) (Entered: 12/07/2009)
259 TEXT ORDER transferring case to Hon. Richard J. Arcara. Signed by Hon. Richard J. Arcara on 1/28/2010. (JMB) (Entered: 01/28/2010)
Hon. Richard J. Arcara added. Hon. John T. Curtin no longer assigned to case. (JMB) (Entered: 01/28/2010)
Correction: Status Conference set for 2/5/2010 09:00 AM before Hon. Richard J. Arcara.. Signed by Hon. Richard J. Arcara on 1/28/2010. (JMB) Modified on 1/28/2010 (JMB). (Entered: 01/28/2010)
E−Filing Notification: Correction: Status Conference set for 2/5/2010 09:00 AM before Hon. Richard J. Arcara.. Signed by Hon. Richard J. Arcara on 1/28/2010. (JMB) Modified on 1/28/2010 (JMB). (JMB) (Entered: 01/28/2010)
Set/Reset Hearings: Motion Hearing set for 3/24/2010 11:00 AM before Hon. Richard J. Arcara. (DJD) (Entered: 02/05/2010)
Minute Entry for proceedings held 2/5/2010 before Hon. Richard J. Arcara. The Court addresses 235 Motion to Certify the Class filed by plaintiffs. Oral Argument on the Motion is schedueld for 3/24/2010 at 11:00 AM before Hon. Richard J. Arcara. Appearances: Pltfs − Elmer Keach (by telephone), Alexandra Warren (by telephone); Defts (County Defts) − Frank Gaglione and Kristin Klein Wheaton; Deft ( H. McCarthy Gibson) − Jonathan Schapp (Court Reporter Yvonne Garrison.) (DJD) (Entered: 03/09/2010)
260 NOTICE by Adam Pritchard, Edward Robinson, Julenne Tucker of Withdrawal of Appearance and Removal from ECF Notification for Attorney Bethany Schumann−McGhee (Keach, Elmer) (Entered: 02/19/2010)
Minute Entry for proceedings held 3/24/2010 before Hon. Richard J. Arcara. Oral Argument is held as to 235 Motion to Certify the Class filed by plaintiffs. The Court requests Pltfs to file proposal to define the class to account for detainees admitted to the Erie County Holding Center and the Erie County Correctional Facility. The proposal is due by 3/31/2010. Decision is reserved as to the Motion to Certify the Class. Appearances: Pltfs − Elmer Keach; Defts (County of Erie, Gallivan, Howard, Livingston and Higgins defendants) − Frank Gaglione, Kristin Klein Wheaton and James Domagalski; Deft (H. McCarthy Gibson) − Jonathan Schapp (Court Reporter Yvonne Garrison.) (DJD) (Entered: 04/13/2010)
261 STATUS REPORT Providing Supplement Submission on Proposed Class Definition by Adam Pritchard, Edward Robinson. (Keach, Elmer) (Entered: 04/06/2010)
E−Filing Notification: No proof of service. Action required: File proof of service 261 STATUS REPORT Providing Supplement Submission on Proposed Class Definition by Adam Pritchard, Edward Robinson. (Keach, Elmer) (DR) (Entered: 04/07/2010)
262 CERTIFICATE OF SERVICE by Adam Pritchard, Edward Robinson re 261 Status Report (Keach, Elmer) (Entered: 04/09/2010)
263 REPLY/RESPONSE to re 261 Status Report filed by Timothy. Howard, Donald J. Livingston, Robert Huggins, The County of Erie, Patrick M. Gallivan.

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06/11/2010 06/24/2010 06/28/2010 07/15/2010 07/19/2010
07/19/2010
07/19/2010

(Attachments: # 1 Certificate of Service)(Domagalski, James) (Entered: 04/23/2010)

264 DECISION AND ORDER granting 235 Motion to Certify Class; granting 247 Motion to Strike. Case is referred back to Magistrate Judge Hugh Scott for further proceedings. Signed by Hon. Richard J. Arcara on 6/11/2010. (JMB) (Entered: 06/11/2010)

265

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT ORDER re 264 Order on Motion to Certify Class, Order on Motion to Strike

Given the referral of this case back to the undersigned, Status Conference set for Mon., 7/19/2010, 11:00 AM, before Hon. Hugh B. Scott to discuss scheduling. So Ordered. Signed by Hon. Hugh B. Scott on 6/24/2010. (DRH) (Entered: 06/24/2010)

CASE REFERRED back to Magistrate Judge Hon. Hugh B. Scott pursuant to order #264. (JMM) (Entered: 06/28/2010)

266 CLERKS CERTIFICATE filed and electronically sent to Court of Appeals. (DR) (Entered: 07/15/2010)

267

HONORABLE HUGH B. SCOTT

TEXT OF MINUTE ENTRY

For proceedings held before Magistrate Judge Hugh B. Scott:

Charles LaDuca, Esq., for plaintiffs; First Assistant County Attorney Kristin Klein Wheaton, James Domagalski, Esq., and Nicholas DiCesare, Esq., for defendants Erie County, Gallivan, Howard, Livingston, and Huggins; and Jonathan Schapp, Esq., for defendant Gipson.

Status Conference held on 7/19/2010. Parties each identified discovery issues following class certification. Defendants noted pending motion before 2d Circuit to review class certification decision. For good cause shown (pending appellate motion, complexity of case, beginning of merits discovery), Court will issue amended Scheduling Order for 14 months of discovery. (DRH) Modified on 7/19/2010 (DRH). (Entered: 07/19/2010)
E−Filing Notification: 267

HONORABLE HUGH B. SCOTT

TEXT OF MINUTE ENTRY

For proceedings held before Magistrate Judge Hugh B. Scott:

Charles LaDuca, Esq., for plaintiffs; First Assistant County Attorney Kristin Klein Wheaton, James Domagalski, Esq., and Nicholas DiCesare, Esq., for defendants Erie County, Gallivan, Howard, Livingston, and Huggins; and Jonathan Schapp, Esq., for defendant Gipson.

Status Conference held on 7/19/2010. Parties each identified discovery issues following class certification. Defendants noted pending motion before 2d Circuit to review class certification decision. For good cause shown (pending appellate motion, complexity of case, beginning of merits discovery), Court will issue amended Scheduling Order for 14 months of discovery. (DRH) Modified on 7/19/2010 (DRH−−add appearance of Schapp). (DRH) (Entered: 07/19/2010)

268

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

AMENDED SCHEDULING/CASE MANAGEMENT ORDER

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10/07/2010 10/12/2010 10/19/2010
10/29/2010 02/11/2011

(Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.)

Further Pretrial Conference set for Wed., 10/13/2010, 10:00 AM, before Hon. Hugh B. Scott.

Plaintiff Expert Witness ID due by 5/2/2011, Defendant Expert Witness ID due by 6/16/2011, Motions to Compel Discovery due by 8/19/2011, Discovery completed by 9/19/2011. Dispositive Motions due by 1/5/2012.

Final Pretrial Conference date and trial date to be set by Judge Arcara.

So Ordered. Signed by Hon. Hugh B. Scott on 7/19/2010. (DRH) (Entered: 07/19/2010)

269 MANDATE of the USCA denying Petitioners motion to appeal the district court's order granting Respondents' motion for class certification because an immediate appeal is unwarranted. (DR) (Entered: 10/07/2010)

270

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT ORDER re 268 Terminate Scheduling Order Deadlines

At the request of the parties, Pretrial Conference reset for Tues., 10/19/2010, 2:30 PM, before Hon. Hugh B. Scott.

So Ordered. Signed by Hon. Hugh B. Scott on 10/12/2010. (DRH) (Entered: 10/12/2010)

271

HONORABLE HUGH B. SCOTT

TEXT OF MINUTE ENTRY

For proceedings held before Magistrate Judge Hugh B. Scott:

Elmer Keach, III, Esq., and Nicholas Migliaccio, Esq., for plaintiffs; First Assistant County Attorney Kristin Klein Wheaton, James Domagalski, Esq., for Erie County, County defendants; Frank Gaglione, Esq., for defendant Gipson

Status Conference held on 10/19/2010. Plaintiffs present settlement proposal, a model from another action for structure of a possible settlement. Defendants to review proposal. Discovery on going with remaining issues surrounding electronic discovery.

Status Report (sent to Chambers only) due by Mon., 12/13/2010. The report is to indicate parties' interest in Court−sponsored mediation and relative settlement positions. (DRH) (Entered: 10/19/2010)

272 NOTICE of Appearance by Thomas F. Kirkpatrick, Jr on behalf of County of Erie, Patrick M. Gallivan, Patrick M. Gallivan(both individually and in his official capcity as Sheriff of the County of Erie), Timothy. Howard(both individually and as Undersheriff of the County of Erie), Timothy. Howard, Robert Huggins, Robert Huggins(both individually and as Deputy Superintendent of the Erie County Correctional Facility), Donald J. Livingston, Donald Livingston, Donald J. Livingston(both individually and as Acting Suprintendent of the Erie County Correctional Facility), The County of Erie (Kirkpatrick, Thomas) (Entered: 10/29/2010)

273

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT ORDER

Status Conference set for Tues., 4/19/2011, 2:00 PM, before Hon. Hugh B. Scott.

Case: 1:04-cv-534 As of: 07/30/2013 12:13 PM EDT 44 of 45

03/31/2011
04/15/2011 04/19/2011
04/19/2011 02/05/2012 02/05/2012 02/06/2012 02/23/2012 04/12/2012
04/20/2012 04/26/2012 05/10/2012 05/10/2012

So Ordered. Signed by Hon. Hugh B. Scott on 2/11/2011. (DRH) (Entered: 02/11/2011)

274

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTT

TEXT ORDER re 273 Text Order, Set Hearings

Due to the Court's calendar, Status Conference reset for Tues., 4/19/2011, 11:00 AM, before Hon. Hugh B. Scott, rather than 2:00 PM as previously ordered.

So Ordered. Signed by Hon. Hugh B. Scott on 3/31/2011. (DRH) (Entered: 03/31/2011)
NOTICE OF STATUS CONFERENCE. A Status Conference is scheduled for 4/19/2011 at 09:00 AM before Hon. Richard J. Arcara. Counsel for plaintiffs may participate by telephone by calling 716−332−7810 on 4/19/2011 at 8:55 AM. (DJD) (Entered: 04/15/2011)
Minute Entry for proceedings held 4/19/2011 before Hon. Richard J. Arcara. Status Conference is held. The Court stays the proceedings for one year pending the outcome of a U.S. Supreme Court case which is of a similar issue to the instant case. Further Status Conference is scheduled for 4/20/2012 at 09:00 AM. Appearances: Pltf − Elmer Keach (via telephone conference call); Deft − Frank Gaglione and James Domagalski (Court Reporter Yvonne Garrison.) (DJD) (Entered: 07/01/2011)
Set/Reset Hearings: Status Conference set for 4/20/2012 09:00 AM before Hon. Richard J. Arcara. (DJD) (Entered: 07/01/2011)
275 NOTICE of Appearance by Michelle M. Parker on behalf of The County of Erie (Parker, Michelle) (Entered: 02/05/2012)
276 NOTICE of Appearance by Michelle M. Parker on behalf of All Defendants (Parker, Michelle) (Entered: 02/05/2012)
277 CERTIFICATE OF SERVICE by The County of Erie re 276 Notice of Appearance for all defendants (except Gibson) (Parker, Michelle) (Entered: 02/06/2012)
278 NOTICE by Adam Pritchard of Change of Firm Name (Migliaccio, Nicholas) (Entered: 02/23/2012)
279 TEXT ORDER: the status conference scheduled for April 20, 2012 is adjourned. The parties are directed to file short memoranda advising the Court of their positions regarding the effect of Florence v. Board of Chosen Freeholders of County of Burlington, −−− S.Ct. −−−−, 2012 WL 1069092 (April 2, 2012)(No. 10−945), on the legal theories at issue and on the pending proceedings. The parties should confer among themselves in order to reach agreements regarding these matters to the extent possible and should submit joint or partially joint memoranda to the extent possible. The parties memoranda shall be due April 26, 2012. Further proceedings will be scheduled by the Court. Issued by Hon. Richard J. Arcara on April 21, 2012. (WJG) (Entered: 04/12/2012)
Appeal Record Returned: 266 Clerks Certificate (DR) (Entered: 04/20/2012)
280 TEXT ORDER: the due date for memoranda of the parties scheduled in Text Order 279 to advise the Court of the views of the parties regarding the effects of the Supreme Court's decision in Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510 (2012), is adjourned to May 10, 2012. Issued by Hon. Richard J. Arcara on April 26, 2012. (WJG) (Entered: 04/26/2012)
281 Consent MOTION for Extension of Time to File To File Status Report Regarding Florence Decision Until May 14, 2012 by Adam Pritchard, Edward Robinson.(Keach, Elmer) (Entered: 05/10/2012)
282 CERTIFICATE OF SERVICE by Adam Pritchard, Edward Robinson re 281 Consent MOTION for Extension of Time to File To File Status Report Regarding Florence Decision Until May 14, 2012 (Keach, Elmer) (Entered: 05/10/2012)

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05/10/2012
05/10/2012 05/14/2012 05/14/2012 05/14/2012
05/14/2012 05/14/2012 05/14/2012 05/14/2012
05/14/2012 05/15/2012 05/15/2012
05/23/2012 05/23/2012
05/23/2012

283 CONTINUATION OF EXHIBITS to 281 Consent MOTION for Extension of Time to File To File Status Report Regarding Florence Decision Until May 14, 2012 Reflecting that the Requested Extension Apply to the Submissions of Both Parties. (Keach, Elmer) (Entered: 05/10/2012)
284 TEXT ORDER: Motion for Extension of Time to File Status Report 281 to May 14, 2012 is granted. Issued by Hon. Richard J. Arcara on May 10, 2012. (WJG) (Entered: 05/10/2012)
285 MEMORANDUM/BRIEF regarding effect of Florence by H. McCarthy Gibson. (D'Agostino, Thomas) (Entered: 05/14/2012)
286 CERTIFICATE OF SERVICE by H. McCarthy Gibson re 285 Memorandum/Brief (D'Agostino, Thomas) (Entered: 05/14/2012)
287 MEMORANDUM/BRIEF re 279 Terminate Hearings, Text Order,,,, Regarding Effect of Florence Decision by Patrick M. Gallivan, Timothy. Howard, Robert Huggins, Donald J. Livingston, The County of Erie. (Attachments: # 1 Certificate of Service)(Domagalski, James) (Entered: 05/14/2012)
288 CONTINUATION OF EXHIBITS to 287 Memorandum/Brief, Exhibit A to Memorandum. (Domagalski, James) (Entered: 05/14/2012)
289 NOTICE by Adam Pritchard, Edward Robinson re 279 Terminate Hearings, Text Order,,,, Submission Regarding the Impact of Florence on Pending Class Action (Keach, Elmer) (Entered: 05/14/2012)
290 CERTIFICATE OF SERVICE by Adam Pritchard, Edward Robinson re 289 Notice (Other) (Keach, Elmer) (Entered: 05/14/2012)
E−Filing Notification: Username and signature do not match (refer to Administrative Procedures Guide Section 1−3c). Action required: re−file document using same signature and password and file updated proof of service. 285 MEMORANDUM/BRIEF regarding effect of Florence by H. McCarthy Gibson. (D'Agostino, Thomas) (DZ) (Entered: 05/15/2012)
E−Filing Notification: 288 CONTINUATION OF EXHIBITS to 287 Memorandum/Brief, (Domagalski, James) **proof of service required** (DZ) (Entered: 05/15/2012)
291 MEMORANDUM/BRIEF re 285 Memorandum/Brief correcting by H. McCarthy Gibson. (Attachments: # 1 Certificate of Service Certificate of Service)(Schapp, Jonathan) (Entered: 05/15/2012)
292 TEXT ORDER: In light of the parties' helpful May 14, 2012 filings regarding the effect of Florence v. Board of Chosen Freeholders of County of Burlington, the parties are directed to confer and each submit a brief statement of the motions they conclude should be filed by May 23, 2012. Issued by Hon. Richard J. Arcara on May 15, 2012. (MLM) (Entered: 05/15/2012)
293 MEMORANDUM/BRIEF re 292 Text Order, with Certificate of Service by Patrick M. Gallivan, H. McCarthy Gibson, Timothy. Howard, Robert Huggins, Donald J. Livingston, The County of Erie. (Domagalski, James) (Entered: 05/23/2012)
294 NOTICE by Adam Pritchard, Edward Robinson re 292 Text Order, Submission on Proposed Motions (Attachments: # 1 Exhibit A −− Letter from Defendants, # 2 Exhibit B −− Email Exchange Between Counsel)(Keach, Elmer) (Entered: 05/23/2012)
295 CERTIFICATE OF SERVICE by Adam Pritchard, Edward Robinson re 294 Notice (Other) (Keach, Elmer) (Entered: 05/23/2012)

 
 473 F.3d 413 (2007)
In re the COUNTY OF ERIE. 414 Adam Pritchard, Edward Robinson, and Julenne Tucker, both individually and *414 on
behalf of a class of others similarly situated, Plaintiffs-Respondents, v.
The County of Erie, Patrick Gallivan, both individually and in his official capacity as Sheriff of the County of Erie, Timothy Howard, both individually and as Undersheriff of the County of Erie, Donald Livingston, both individually and as Acting Superintendent of the
Erie County Correctional Facility, and Robert Huggins, both individually and as Deputy Superintendent of the Erie County Correctional Facility, Defendants-Petitioners,
H. McCarthy Gibson, both individually and as Superintendent of the Erie County Holding Center, Defendant.
Docket No. 06-2459-OP.
United States Court of Appeals, Second Circuit.
Submitted: September 12, 2006. Decided: January 3, 2007.
415 *415 Frank T. Gaglione, Hiscock & Barclay LLP, Buffalo, NY, for Defendants-Petitioners.
Elmer Robert Keach, III, Law Offices of Elmer Robert Keach, III, PC, Amsterdam, NY; Jonathan W. Cuneo, Charles J. LaDuca, Alexandra Coler, Cuneo, Gilbert & Laduca, LLP, Washington, DC; Gary E. Mason, Nicholas A. Migliaccio, The Mason Law Firm, PC, Washington, DC; Alexander E. Barnett, The Mason Law Firm, P.C., New York, NY; David Gerald Jay, Buffalo, NY; Bruce E. Menken, Jason J. Rozger, Beranbaum Menken Ben-Asher & Biermam LLP, New York, NY, for Plaintiffs-Respondents.
Before JACOBS, Chief Judge, CARDAMONE and MINER, Circuit Judges.
DENNIS JACOBS, Chief Judge.
In the course of a lawsuit by a class of arrested persons against Erie County (and certain of its officials) alleging that they were subjected to unconstitutional strip searches, the United States District Court for the Western District of New York (Curtin, J.) ordered the discovery of e-mails (and other documents) between an Assistant Erie County Attorney and County officials that solicit, contain and discuss advice from attorney to client. The County defendants petition for a writ of mandamus directing the district court to vacate that order. The writ is available because: important issues of first impression are raised; the privilege will be irreversibly lost if review awaits final judgment; and immediate resolution of this dispute will promote sound discovery practices and doctrine. Upon consideration of the circumstances, we issue the writ ordering the district court: to vacate its order, to determine whether the privilege was otherwise waived, and to enter an interim order to protect the confidentiality of the disputed communications.
I
416 On July 21, 2004, plaintiffs-respondents Adam Pritchard, Edward Robinson and *416 Julenne Tucker commenced suit under 42 U.S.C. § 1983, individually and on behalf of a class of others similarly situated, alleging that, pursuant to a written policy of the Erie County Sheriff's Office and promulgated by County officials, every detainee who entered the Erie County Holding Center or Erie County Correctional Facility (including plaintiffs) was subjected to an invasive strip search, without regard to individualized suspicion or the offense alleged, and that this policy violates the Fourth Amendment.[1] They sued the County of Erie, New York, as well as Erie County Sheriff Patrick Gallivan; Undersheriff Timothy Howard; the acting Superintendent of the Erie

County Correctional Facility, Donald Livingston; the Deputy Superintendent, Robert Huggins; and the Superintendent of the Erie County Holding Center, H. McCarthy Gibson (collectively, the "County").
During the course of discovery, the County withheld production of certain documents as privileged attorney-client communications; a privilege log was produced instead, pursuant to the Federal Rules of Civil Procedure and Local Civil Rules for the Western District of New York. In August 2005, plaintiffs moved to compel production of the logged documents, almost all of which were e-mails. The County submitted the documents to Magistrate Judge Hugh B. Scott for inspection in camera. In January 2006, Judge Scott ordered production of ten of the withheld e-mails,[2] which (variously) reviewed the law concerning strip searches of detainees, assessed the County's current search policy, recommended alternative policies, and monitored the implementation of these policy changes.
Judge Scott reasoned that:
0905 These communications "go beyond rendering `legal analysis' [by] propos[ing] changes to existing policy to make it constitutional, including drafting of policy regulations";
0905 The "drafting and subsequent oversight of implementation of the new strip search policy ventured beyond merely rendering legal advice and analysis into the realm of policy making and administration"; and
0905 "[N]o legal advice is rendered apart from policy recommendations."
Judge Scott ordered the County to deliver these ten e-mails to the plaintiffs.
After considering the County's objections to this order, the district court independently reviewed the disputed emails in camera and, applying a "clearly erroneous" standard, overruled the objections, and directed production. This petition for a writ of mandamus followed.
II
Ordinarily, pretrial discovery orders involving a claim of privilege are unreviewable on interlocutory appeal, "and we have expressed reluctance to circumvent this salutary rule by use of mandamus." In re W.R. Grace & Co., 984 F.2d 587, 589 (2d Cir.1993). At the same time, the writ is appropriate to review discovery orders that potentially invade a privilege, where: (A) the petition raises an important issue of first impression; (B) the privilege 417 will be lost if review must await final judgment; and (C) immediate resolution *417 will avoid the development of discovery practices or doctrine that undermine the privilege. Chase Manhattan Bank, N.A. v. Turner & Newall PLC, 964 F.2d 159, 163 (2d Cir.1992); In re Long Island Lighting Co., 129 F.3d 268, 270 (2d Cir. 1997). (Although the County argues that any single showing is enough, the test sprouts three prongs; in any event, the County prevails on all three.)
(A) This petition raises an issue of first impression: whether the attorney-client privilege protects communications that pass between a government lawyer having no policymaking authority and a public official, where those communications assess the legality of a policy and propose alternative policies in that light.[3] The issue is not unimportant.
"[T]here is little case law addressing the application of the attorney-client privilege" in the government context. In re Grand Jury Investigation, 399 F.3d 527, 530 (2d Cir.2005); see also Ross v. City of Memphis, 423 F.3d 596, 601 (6th Cir.2005) (same). The issue of first impression here concerns policy advice rendered by a government lawyer, and the distinction between (on the one hand) attorney-client privileged recommendations designed to achieve compliance with the law or reduce legal risk, and (on the other) recommendations made for other reasons, which advice may not be privileged.[4]
(B) Post-judgment relief would be inadequate to protect the privilege, if it exists; this consideration "justifies the more liberal use of mandamus in the context of privilege issues." In re Long Island Lighting Co., 129 F.3d at 271; see also In re von Bulow, 828 F.2d 94, 99 (2d Cir. 1987).

A motions panel of this Court denied the County's motion for a stay pending appeal, so the communications at issue are already in plaintiffs' hands. Plaintiffs argue that the dispute is now moot because "the risks associated with the development of discovery practices . . . undermining the privilege . . . have already been realized." Issuing the writ "cannot unsay the confidential information that has been revealed." In re von Bulow, 828 F.2d at 99. In the circumstances presented, the privilege can nevertheless be vindicated by preventing the use of the documents during further discovery (including, for example, in depositions, interrogatories, document requests and pretrial motions) and at trial.
(C) To await resolution of this issue pending final judgment risks the development of discovery practices and doctrine that unsettle and undermine the governmental attorney-client privilege. See Chase Manhattan, 964 F.2d 418 at 164. To "encourage full and frank communication *418 between attorneys and their clients," Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), lawyers and clients need to know which of their communications are protected. "An uncertain privilege . . . is little better than no privilege." In re von Bulow, 828 F.2d at 100. The "potentially broad applicability and influence of the privilege ruling" weighs heavily in favor of adjudicating the dispute now. In re Long Island Lighting Co., 129 F.3d at 271.
III
The attorney-client privilege protects confidential communications between client and counsel made for the purpose of obtaining or providing legal assistance. United States v. Const. Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir.1996). Its purpose is to encourage attorneys and their clients to communicate fully and frankly and thereby to promote "broader public interests in the observance of law and administration of justice." Upjohn, 449 U.S. at 389, 101 S.Ct. 677; see also In re John Doe, Inc., 13 F.3d 633, 635-36 (2d Cir.1994). "The availability of sound legal advice inures to the benefit not only of the client who wishes to know his options and responsibilities in given circumstances, but also of the public which is entitled to compliance with the ever growing and increasingly complex body of public law." In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1036-37 (2d Cir.1984).
At the same time, we construe the privilege narrowly because it renders relevant information undiscoverable; we apply it "only where necessary to achieve its purpose." Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); see In re Grand Jury Investigation, 399 F.3d at 531. The burden of establishing the applicability of the privilege rests with the party invoking it. In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir.2000); United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am., AFL-CIO, 119 F.3d 210, 214 (2d Cir.1997).
In civil suits between private litigants and government agencies, the attorney-client privilege protects most confidential communications between government counsel and their clients that are made for the purpose of obtaining or providing legal assistance.[5]In re Grand Jury Investigation, 399 F.3d at 532; see, e.g., Ross v. City of Memphis, 423 F.3d 596, 601 (6th Cir.2005) ("[A] government entity can assert attorney-client privilege in the civil context."); In re Lindsey, 148 F.3d 1100, 1107 (D.C.Cir.1998) (per curiam) (noting the existence of "a government attorney-client privilege that is rather absolute in civil litigation"); cf. Proposed Fed. R.Evid. 503(a)(1), reprinted in 56 F.R.D. 183, 235 (1972) (describing a client, for the purpose of defining the attorney-client privilege, as a "person, public officer, or corporation, association, or other organization or entity, either public or private") (emphasis added).
419 The attorney-client privilege accommodates competing values; the competition is *419 sharpened when the privilege is asserted by a government. On the one hand, non-disclosure impinges on open and accessible government. See Reed v. Baxter, 134 F.3d 351, 356-57 (6th Cir.1998). On the other hand, public officials are duty-bound to understand and respect constitutional, judicial and statutory limitations on their authority; thus, their access to candid legal advice directly and significantly serves the public interest:
We believe that, if anything, the traditional rationale for the [attorney-client] privilege applies with special force in the government context. It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failing to do so, be

encouraged to seek out and receive fully informed legal advice. Upholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable, and even indispensable part of conducting public business. Abrogating the privilege undermines that culture and thereby impairs the public interest.
In re Grand Jury Investigation, 399 F.3d at 534. Access to legal advice by officials responsible for formulating, implementing and monitoring governmental policy is fundamental to "promot[ing] broader public interests in the observance of law and administration of justice," Upjohn, 449 U.S. at 389, 101 S.Ct. 677. At least in civil litigation between a government agency and private litigants, the government's claim to the protections of the attorneyclient privilege is on a par with the claim of an individual or a corporate entity.
IV
A party invoking the attorney-client privilege must show (1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice. Const. Prod. Research, Inc., 73 F.3d at 473. At issue here is the third consideration: whether the communications were made for the purpose of obtaining or providing legal advice, as opposed to advice on policy.[6]
The rule that a confidential communication between client and counsel is privileged only if it is generated for the purpose of obtaining or providing legal assistance is often recited. The issue usually arises in the context of communications to and from corporate in-house lawyers who also serve as business executives. See, e.g., MSF Holding, Ltd. v. Fiduciary Trust Co. Int'l, No. 03 Civ. 1818, 2005 WL 3338510, at *1 (S.D.N.Y. Dec. 7, 2005); Bank Brussels Lambert v. Credit Lyonnais (Suisse), 220 F.Supp.2d 283, 286 (S.D.N.Y.2002); U.S. Postal Serv. v. Phelps Dodge Refining Corp., 852 F.Supp. 156, 160 (E.D.N.Y.1994). So the question usually is whether the communication was generated for the purpose of obtaining or providing legal advice as opposed to business advice. See In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d at 1036-37.
Fundamentally, legal advice involves the interpretation and application of legal principles to guide future conduct or to assess past conduct. See generally 1 Paul R. Rice, Attorney Client Privilege in the United States § 7:9 (2d ed.1999). It requires a lawyer to rely on legal education and experience to inform judgment. Ball v. U.S. Fid. & 420 Guar. Co., No. M8-85, 1989 *420 WL 135903, at *1 (S.D.N.Y. Nov.8, 1989) (reasoning that legal advice "involve [s] the judgment of a lawyer in his capacity as a lawyer"). But it is broader, and is not demarcated by a bright line. What Judge Wyzanski observed long ago applies with equal force today:
The modern lawyer almost invariably advises his client upon not only what is permissible but also what is desirable. And it is in the . . . public interest that the lawyer should regard himself as more than [a] predicter of legal consequences. His duty to society as well as to his client involves many relevant social, economic, political and philosophical considerations. And the privilege of nondisclosure is not lost merely because relevant nonlegal considerations are expressly stated in a communication which also includes legal advice.
United States v. United Shoe Mach. Corp., 89 F.Supp. 357, 359 (D.Mass.1950). We consider whether the predominant purpose of the communication is to render or solicit legal advice. United States v. Int'l Bus. Machs. Corp., 66 F.R.D. 206, 212 (S.D.N.Y. 1974); see also In re Buspirone Antitrust Litig., 211 F.R.D. 249, 252-53 (S.D.N.Y. 2002) (employing the "primary purpose" standard in assessing whether the attorney-client privilege protects certain documents); In re Grand Jury Proceedings, No. M-11-198, 2001 WL 1167497, at *25 (S.D.N.Y. Oct.3, 2001) (same); Armstrong v. Brookdale Hosp., No. 98 Civ. 2416, 1999 WL 690149, at *2 (E.D.N.Y. Aug. 28, 1999) (same); U.S. Postal Serv., 852 F.Supp. at 163 (applying a "dominant purpose" standard).[7]
The complete lawyer may well promote and reinforce the legal advice given, weigh it, and lay out its ramifications by explaining: how the advice is feasible and can be implemented; the legal downsides, risks and costs of taking the advice or doing otherwise; what alternatives exist to present measures or the measures advised; what other persons are doing or thinking about the matter; or the collateral benefits, risks or costs in terms of expense, politics, insurance, commerce, morals, and appearances. So long as the predominant purpose of the

communication is legal advice, these considerations and caveats are not other than legal advice or severable from it. The predominant purpose of a communication cannot be ascertained by quantification or classification of one passage or another; it should be assessed dynamically and in light of the advice being sought or rendered, 421 as well as the *421 relationship between advice that can be rendered only by consulting the legal authorities and advice that can be given by a non-lawyer.[8] The more careful the lawyer, the more likely it is that the legal advice will entail follow-through by facilitation, encouragement and monitoring.
V
The County asserts that the Assistant County Attorney whose advice was solicited could not have been conveying non-legal policy advice because the Erie County Charter (§ 602) confines her authority to that of a "legal advisor," and because "only the County Sheriff and his direct appointees ha[ve] policy-making authority for the [Sheriff's] department." This argument does not assist the analysis much. A lawyer's lack of formal authority to formulate, approve or enact policy does not actually prevent the rendering of policy advice to officials who do possess that authority. A similar consideration may be useful in different circumstances. When an attorney is consulted in a capacity other than as a lawyer, as (for example) a policy advisor, media expert, business consultant, banker, referee or friend, that consultation is not privileged. In re Lindsey, 148 F.3d at 1106 (citing 1 McCormick on Evidence § 88, at 322-24 (4th ed.1992); Restatement (Third) of the Law Governing Lawyers § 122 (Proposed Final Draft No. 1, 1996)).[9] In the government context, one court considered relevant the fact that the attorney seeking to invoke the privilege held two formal positions: Assistant to the President (ostensibly nonlegal) and Deputy White House Counsel (ostensibly legal). In re Lindsey, 148 F.3d at 1103, 1106-07. The same is true in the private sector where "in-house attorneys are more likely to mix legal and business functions." Bank Brussels Lambert, 220 F.Supp.2d at 286; accord Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 147 (D.Del.1977). In short, an attorney's dual legal and non-legal responsibilities may bear on whether a particular communication was generated for the purpose of soliciting or rendering legal advice; but here, the Assistant County Attorney's lack of formal policymaking authority is not a compelling circumstance.
The predominant purpose of a particular document0907legal advice, or not 0907may also be informed by the overall needs and objectives that animate the client's request for advice. For example, Erie County's objective was to ascertain its obligations under the Fourth Amendment and how those requirements may be fulfilled, rather than to save money or please the electorate (even though these latter objectives would not be beyond the lawyer's consideration).
VI
After reviewing in camera the documents listed on the County's privilege log, Judge Scott determined that the ten 422 e-mails at issue here are not privileged. These e-mails, dated between December *422 23, 2002 and December
11, 2003, passed between the Assistant County Attorney and various officials in the Sheriff's Office (primarily petitioners). The ten e-mails are an amalgam of the following six broad issues:
(i) The compliance of the County's search policy with the Fourth Amendment (EC-C-0014, ECC-0060, EC-C-00119, EC-C-00126 and EC-C-00161);
(ii) Any possible liability of the County and its officials stemming from the existing policy (ECC-0014, EC-C-0060, EC-C-00119 and EC-C-00126);
(iii) Alternative search policies, including the availability of equipment to assist in conducting searches that comply with constitutional requirements (EC-C-14, EC-C-0060, EC-C-00108, ECC-00119, EC-C-00126, EC-C-00161-79, EC-C-00180 and EC-C-00227);
(iv) Guidance for implementing and funding these alternative policies (EC-C-14, EC-C-0060, ECC-00119, EC-C-00126, EC-C-00161, EC-C-00180, EC-C-204-20 and EC-C-00227);
(v) Maintenance of records concerning the original search policy (EC-C-00225); and

(vi) Evaluations of the County's progress implementing the alternative search policy (ECC-00204-20 and EC-C-00223-25).[10]
The judge reasoned (inter alia) that because these e-mails "propose[d] changes to existing policy to make it constitutional" and provided guidance "to executive officials within the Sheriff's Department to take steps to implement the new policy . . . no legal advice is rendered or rendered apart from policy recommendations." Because the e-mails "go beyond rendering legal analysis," the judge concluded that they were not privileged. We disagree.
It is to be hoped that legal considerations will play a role in governmental policymaking. When a lawyer has been asked to assess compliance with a legal obligation, the lawyer's recommendation of a policy that complies (or better complies) with the legal obligation or 0907 that advocates and promotes compliance, or oversees implementation of compliance measures is 0907 legal advice. Public officials who craft policies that may directly implicate the legal rights or responsibilities of the public should be "encouraged to seek out and receive fully informed legal advice" in the course of formulating such policies. In re Grand Jury Investigation, 399 F.3d at 534. To repeat: "The availability of sound legal advice inures to the benefit not only of the client . . . but also of the public which is entitled to compliance with the ever growing and increasingly complex body of public law." In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d at 1036-37. This observation has added force when the legal advice is sought by officials responsible for law enforcement and corrections policies.
We conclude that each of the ten disputed e-mails was sent for the predominant purpose of soliciting or rendering legal advice. They convey to the public officials responsible for formulating, implementing and monitoring Erie County's corrections policies, a lawyer's assessment of Fourth Amendment requirements, and provide guidance 423 in crafting and implementing alternative *423 policies for compliance. This advice 0907 particularly when viewed in the context in which it was solicited and rendered-does not constitute "general policy or political advice" unprotected by the privilege. In re Lindsey, 148 F.3d at 1120 (Tatel, J., dissenting).
Although the e-mails at issue were generated for the predominant purpose of legal advice, we remand for the district court to determine whether the distribution of some of the disputed e-mail communications to others within the Erie County Sheriff's Department constituted a waiver of the attorney-client privilege. Cf. In re Horowitz, 482 F.2d 72, 81-82 (2d Cir.1973); see also United States v. DeFonte, 441 F.3d 92, 94-95 (2d Cir.2006) (per curiam).
Conclusion
The writ of mandamus is granted; the district court's April 17, 2006 order is vacated; the district court is instructed to determine whether the attorney-client privilege was nonetheless waived; pending adjudication, the district court is directed to enter an order protecting the confidentiality of the disputed e-mails.
[1] We intimate no view as to the underlying merits.
[2] Certain of these e-mails are better characterized as e-mail chains, because they contain the initial e-mail as well as subsequent responses. Because the chains concern the subject of the original e-mail, for simplicity's sake, we use the term "e-mail" to encompass the entire e-mail "conversation."
[3] The parties have not raised the applicability of the deliberative process privilege. See Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir.2005) ("[T]he deliberative process privilege [is] a sub-species of work-product privilege that covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." (internal quotation marks omitted)).
[4] Respondents assert that this issue is not novel and that it was raised in Mobil Oil Corp. v. Dep't of Energy, 102 F.R.D. 1 (N.D.N.Y. 1983). Mobil Oil is useful; but it applies the familiar requirement that a factual communication sent to an attorney is protected by the attorney-client privilege only if the communication was generated for the purpose of securing legal assistance. Id. at 9-10. Because in that case it was "impossible to determine" whether

certain factual memoranda were sent to government lawyers primarily for the purpose of securing legal assistance, the government did not discharge its burden to prove that the privilege applied. Id.
[5] Certain limitations to the government attorney-client privilege, not implicated here, may render an otherwise protectable communication unprotected. See Nat'l Council of La Raza, 411 F.3d at 360-61 (holding that the government could not invoke the attorney-client privilege to bar disclosure of a legal memorandum where the government had incorporated it into its policy by repeatedly, publicly and expressly relying upon its reasoning and had adopted its reasoning as authoritative within the agency); see also Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 974 (7th Cir.1977); Falcone v. IRS, 479 F.Supp. 985, 989-90 (E.D.Mich. 1979).
[6] As discussed infra in Part VI, we remand to the district court to consider whether petitioners waived the privilege through distribution of certain e-mails. However, that is not the focus of this opinion, and we intimate no view of its resolution on remand.
[7] In dicta, this Court has observed that "[t]he [corporate attorney-client] privilege is clearly limited to communications made to attorneys solely for the purpose of the corporation seeking legal advice and its counsel rendering it." In re John Doe Corp., 675 F.2d 482, 488 (2d Cir.1982) (emphasis added). However, because the Court held that the corporation had waived the privilege (and because there was cause to believe that the crimefraud exception applied), the issue was not further considered. Id. at 488-89. As discussed in the accompanying text, however, we think the predominant-purpose rule is the correct one. Accord In re Lindsey, 148 F.3d at 1106; In re Grand Jury Subpoena, 204 F.3d 516, 520 n. 1 (4th Cir.2000) (requiring that the confidential communication must be made "for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding"); Montgomery County v. MicroVote Corp., 175 F.3d 296, 301 (3d Cir.1999) (same); United States v. Robinson, 121 F.3d 971, 974 (5th Cir.1997) (same); see also Rice, Attorney Client Privilege in the United States § 7:5 ("[T]here is general agreement that the protection of the privilege applies only if the primary or predominate purpose of the attorney-client consultation is to seek legal advice or assistance." (emphasis in original)); 24 Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure § 5490 (1986) (observing that while this issue is "seldom discussed by the courts and writers," the majority rule is the "dominant purpose doctrine").
[8] Importantly, redaction is available for documents which contain legal advice that is incidental to the nonlegal advice that is the predominant purpose of the communication. See, e.g., United States v. Weisman, No. 94 Cr. 760, 1995 WL 244522, at *4 (S.D.N.Y. Apr.26, 1995) (recognizing the availability of redaction to protect legal advice in hybrid documents); Detection Sys., Inc. v. Pittway Corp., 96 F.R.D. 152, 155 (W.D.N.Y.1982) ("In those instances where both privileged and non-privileged material exist, the privileged material has been deleted.").
[9] Normally, the capacity in which a lawyer receives or generates a communication is related to determining whether the communication actually involves a lawyer; in other words, a lawyer not acting in her capacity as a lawyer is not a lawyer for the purpose of the attorney-client privilege.
[10] Because these documents have been and will be under seal, we limit our description, to the extent possible, to that which the rules require be disclosed: "the general subject matter of the document." W.D.N.Y. Civ. R. 26(f) (1)(B)(i)(I I). No description by this Court or by the trial court should be taken to prejudge any issue relevant to the underlying claim.
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 Pritchard v. County of Erie
United States District Court for the Western District of New York June 26, 2006, Decided ; June 26, 2006, Filed 04CV534C

Reporter: 2006 U.S. Dist. LEXIS 42984 ADAM PRITCHARD, et al., Plaintiffs, v. THE COUNTY OF ERIE, et al., Defendants.
Subsequent History: Motion denied by, Request denied by Pritchard v. County of Erie, 2006 U.S. Dist. LEXIS 74356 (W.D.N.Y., Oct. 12, 2006)
Prior History: Pritchard v. County of Erie, 2006 U.S. Dist. LEXIS 94775 (W.D.N.Y., Apr. 7, 2006)
Counsel: [*1] For Adam Pritchard, Edward Robinson, Plaintiffs: Bruce E. Menken, Beranbaum Menken Ben-Asher & Bierman LLP, New York, NY; Charles Joseph LaDuca, Cuneo Gilbert & LaDuca, LLP, Washington, DC; David G. Jay, Buffalo, NY; Elmer R. Keach, III, Law Offices of Elmer Robert Keach III, Amsterdam, NY; Alexander E. Barnett, The Mason Law Firm, PC, New York, NY US.
For Julenne Tucker, both individually and on behalf of a class of others similarly situated, Plaintiff: Bruce E. Menken, Beranbaum Menken Ben-Asher & Bierman LLP, New York, NY; David G. Jay, Buffalo, NY; Elmer R. Keach, III, Law Offices of Elmer Robert Keach III, Amsterdam, NY; Alexander E. Barnett, The Mason Law Firm, PC, New York, NY US.
For The County of Erie, Robert Huggins, both individually and as Deputy Superintendent of the Erie County Correctional Facility, Defendants: Frank T. Gaglione, Frank T. Gaglione, P.C., Amherst, NY; Kristin Klein Wheaton, Assistant County Attorney, Buffalo, NY; James Paul Domagalski, Hiscock & Barclay LLP, Buffalo, NY.
For Patrick M. Gallivan, both individually and in his official capcity as Sheriff of the County of Erie, Timothy. Howard, both individually and as Undersheriff of the County [*2] of Erie, Donald J. Livingston, both individually and as Acting Suprintendent of the Erie County Correctional Facility, Defendants: Frank T. Gaglione, Frank T. Gaglione, P.C., Amherst, NY; Kristin Klein Wheaton, Assistant County Attorney, Buffalo, NY.
For H. McCarthy Gibson, both individually and as Superintendent of the Erie County Holding Center,

Defendant: Kristin Klein Wheaton, Assistant County Attorney, Buffalo, NY; Thomas C. D'Agostino, Mattar, D'Agostino & Gottlieb, LLP, Buffalo, NY.
For Patrick M. Gallivan, both individually and in his official capcity as Sheriff of the County of Erie, Timothy. Howard, both individually and as Undersheriff of the County of Erie, Robert Huggins, both individually and as Deputy Superintendent of the Erie County Correctional Facility, Donald J. Livingston, both individually and as Acting Suprintendent of the Erie County Correctional Facility, The County of Erie, Cross Claimants: Frank T. Gaglione, Frank T. Gaglione, P.C., Amherst, NY.
For H. McCarthy Gibson, both individually and as Superintendent of the Erie County Holding Center, Cross Claimant: Thomas C. D'Agostino, Mattar, D'Agostino & Gottlieb, LLP, Buffalo, NY.
For Patrick [*3] M. Gallivan, both individually and in his official capcity as Sheriff of the County of Erie, Timothy. Howard, both individually and as Undersheriff of the County of Erie, Robert Huggins, both individually and as Deputy Superintendent of the Erie County Correctional Facility, Donald J. Livingston, both individually and as Acting Suprintendent of the Erie County Correctional Facility, The County of Erie, Cross Defendants: Frank T. Gaglione, Frank T. Gaglione, P.C., Amherst, NY.
Judges: Honorable Hugh B. Scott, United States Magistrate Judge.
Opinion by: Hugh B. Scott
Opinion
Order
Before the Court are (a) the motion of the County Defendants 1 for a protective Order, pursuant to Fed. R. Civ. P. 26(c), against disclosure of documents "relating to non-strip search related incidents including assaults and attempted suicides and unrelated non-strip search e-mail/

1 The "County Defendants" consist of Erie County, its former and present Sheriffs and named Sheriff's Department officials who were allegedly responsible for the Erie County Holding Center and the Erie County Correctional Facility, all of the defendants in this action save defendant Gipson (who is separately represented).

2006 U.S. Dist. LEXIS 42984, *5

Page 2 of 6

documents" (Docket No. 116, Notice of Motion 2 at 1; see custody some time between July 22, 2001, to the present)

also Docket No. 118, County Defs. Atty. Aff. (substituting P9 were strip

of the affidavit in Docket No. 116 3), and (b) plaintiffs' searched without cause while in the custody of the Erie

motion to compel to produce all documents designated by County Sheriff (Docket No. 1, Compl. P15).

defendants as "felony" documents, and to allow plaintiffs [*4] to inspect the original documents responsive County Defendants' Motion for Protective Order

to their demands (Docket No. 120 4). In support of this motion are defense counsel's affidavit with exhibits (surrounding the belated County production of three e-mails) and memorandum of law (Docket No. 116).

Following production of three e-mails by defendant McCarthy Gipson, the County Defendants reviewed their files to locate those e-mails. Eventually, they were found in a file of nonproduced documents with several hundred non-strip search

[*5] Given the most recently amended Scheduling Order for this action (see Docket No. 103) and its declaration that it would not be extended further (id. at 13 5; see also Docket No. 52, Order of Sept. 26, 2005, at 35 (stating that case needed to get to its underlying merits); Docket No. 103, Order of Mar. 20, 2006, at 13 (same)), the simplicity of the discovery issues involved, and to keep this action moving to eventual consideration of its merits, the briefing schedule for these latest motions was truncated. Responses to these

related documents (Docket No. 116, County Defs. Atty. Aff. P7). The County Defendants produced their copies of the three e-mails (id. PP8-9, Ex. C, B; see Docket No. 118, County Defs. Atty. Aff. P9, Ex. [*7] C), but not the other documents that were in the files where the County Defendants found the e-mails (Docket No. 116, County Defs. Atty. Aff. P10). Plaintiffs, in reply, now contend that other responsive documents were produced from these "felony" files (Docket No. 126, Pls. Atty. Reply Affirm. P2).

motions were due by June 21, 2006, and the motions were deemed submitted (without further reply or oral argument) on June 21 (Docket Nos. 117, 121, Orders of June 14 and 15, 2006).

According to the County Defendants' counsel, these non-strip search documents consist of approximately 550 pages, some dating back to 1999 (Docket No. 116, County Defs. Atty. Aff. P12). These documents deal with assaults between inmates,

BACKGROUND

suicide attempts, HIPPA authorization forms, sexual harassment training, and other unrelated matters (id.). The

This is yet another excursion [*6] into discovery motion County Defendants offered to produce these items to plaintiffs

practice in this civil rights action that alleges a potential class subject to a confidentiality agreement (cf. Docket No. 53,

action. Familiarity with the factual and procedural history of Order for confidentiality of disclosed booking records) but

this case, including the prior motions (see Docket Nos. 16, 22, plaintiffs' counsel refused (Docket No. 116, County Defs.

25, 40, 80, 86, 98, 107, 110) and Orders in this case (see Atty. Aff. P13). The County Defendants also have offered to

Docket Nos. 52, 53, 71, 78, 103, 106, 113, 114), is presumed. produce the documents for in camera inspection (id. P20).

Plaintiffs are three persons who were detained in the custody Defendant Gipson also suggests that the Court review these

of Erie County for non-felony offenses and they allege that documents in camera to determine their relevance (Docket

they (and others similarly situated, who were in defendants' No. 123, Gipson Atty. Affirm. P7).

2 The County Defendants filed in support of their motion an attorney's affidavit with exhibits, Docket Nos. 116, 118, and memorandum of law, Docket No. 116.
In opposition, plaintiffs filed a reply affirmation from their attorney and a memorandum of law, Docket No. 126; see Docket No. 125 (same motion papers, but not properly signed).
3 The County Defendants' motion for leave to amend their prior motion is granted,see Docket No. 122.
4 Corrected from Docket No. 119. Docket No. 119's motion is therefore terminated.
In support of their motion, plaintiffs filed an attorney's affirmation with exhibits, Docket No. 120.
In opposition, the County Defendants submitted an attorney's reply affirmation, Docket No. 124, and defendant Gipson's attorney also filed an affirmation, Docket No. 123, noting that plaintiffs' motion did not address Gipson's production, id. P2.
5 That Amended Scheduling Order set a deadline of May 1, 2006, for class certification discovery; July 10, 2006, for a class certification motion; and September 12, 2006, for concluding all discovery in the case-in-chief. Docket No. 103, at 12-13, 13-14.

2006 U.S. Dist. LEXIS 42984, *7

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The County Defendants [*8] report that plaintiffs have orally false (id. P7). On the County Defendants' offer to produce the

and by e-mail 6 insisted upon production of these documents, documents under a confidentiality stipulation, plaintiffs

contending that plaintiffs have not made a formal request for refused and now argue that the defendants fail to meet their

their production (Docket No. 116, County Defs. Atty. Aff. burden for sealing these records from the public (id. P9).

PP10, 14). This disregards, however, plaintiffs' discovery Plaintiffs believe that the County Defendants waived any

demands which sought production of documents related to objection to production of these documents by not detailing

strip searches of felony detainees (Docket No. 120, Pls. Atty. their existence either in their production or in a privilege log

Affirm. Ex. A, at 4, document request number 2). The County (id. P10).

Defendants generally objected to producing felony documents

as not relevant to this action (id. Ex. B, at 1), but the County Defendants agreed to produce responsive documents (id. at 45).

Plaintiffs also seek to inspect the originals of the County Defendants' records (now limited to documents in the possession of the Sheriff's Department's Office of Professional Standards and the County Attorney's office,

The County Defendants argue that these non-strip search Docket No. 126, Pls. Atty. Affirm. P10), because they believe

documents are not relevant to this case and [*9] need not be that some documents [*11] have been retained by the

produced. Some predate the July 2001 starting date for the Sheriff's Department's Office of Professional Standards but

proposed class (see Docket No. 116, County Defs. Atty. Aff. have not been produced by these defendants (Docket No. 120,

P12). They argue that the documents are not responsive to Pls. Atty. Affirm. P11) and plaintiffs obtained some other

plaintiffs' demands and are not relevant to their strip search documents from third parties that these defendants have yet to

allegations (id. PP11, 12, 15) but their disclosure in this case produce (id. P12, Ex. J, at 18, e-mail from Kristin Machelor to

may impact other, wholly unrelated cases (id. P16; Docket Tom Mitchell). Plaintiffs justify their request by the alleged

No. 116, County Defs. Memo. of Law at 5).

"pattern of deception and discovery abuse in this litigation"

by the County Defendants (id. P14), calling a privilege log

Plaintiffs' Motion to Compel

considered in an earlier motion "clearly deceptive" and

Plaintiffs' document demand included seeking production of incident reports, logbook entries, and other writings regarding felony detainee strip searches (Docket No. 120, Pls. Atty. Affirm. Exs. A (pls. document demand) at 4, request number 2, B (County Defs. response) at 4-5); cf. id. Ex. A at 4, request number 1 (documents regarding non-felony

"continued to disrupt deposition testimony with the use of speaking objections despite a Court Order detailing appropriate deposition conduct" (id.; cf. Docket No. 52, Order at 20-21 (at defendants' request, Court reminded and admonished all counsel not to make speaking objections during depositions) 7).

detainees)). They contend that the County Defendants initially [*12] Plaintiffs do not seek sanctions now for the above agreed to produce these felony documents, but then conduct but reserved the right to make a later motion on this unilaterally proposed a protective order regarding them conduct and other conduct that occurred during this action

(Docket No. 120, Pls. Atty. Affirm. P9). Plaintiffs claim that the over 500 pages of documents the County Defendants refuse to produce are "felony" documents, represented to plaintiffs as related to felony [*10] strip search documents (Docket No. 120, Pls. Atty. Affirm. PP5, 7). Since the three emails were "misfiled" among these "felony" documents,

(Docket No. 120, Pls. Atty. Affirm. P15). They certify their good faith in trying to resolve this matter informally by noting their attempts to obtain these documents or to review defendants' original files short of motion practice (id. P16, Ex. K).

plaintiffs now seek to inspect the "felony" documents (see id. In opposition, defendant Gipson notes that plaintiffs in effect

P8). Plaintiffs argue that defense counsel first stated that argue the merits of their case in a discovery motion, raising

plaintiffs never sought felony materials and then claimed that "irrelevant factual assertions" which have yet to be

the "felony" documents were included in a privilege log; established on the record (Docket No. 123, Gipson Atty.

plaintiffs now conclude that both of defense counsel's Affirm. PP3, 4). The County Defendants respond to plaintiffs'

assertions were

motion by reasserting the grounds the County Defendants

raise in their motion for a protective order, that

6 Although defense counsel has not attached in support of their motion a copy of the e-mail communication between counsel dealing with this issue, plaintiffs in their motion include some of that communication, see Docket No. 120, Pls. Atty. Affirm. Exs. G, H, K.
7 Plaintiffs' present motion, however, does not seek sanction for this disruptive conduct or specify when such conduct occurred. But this conduct is the type that the Court chided all parties to avoid in conducting depositions in this case, Docket No. 52, Order at 20-21, 35.

2006 U.S. Dist. LEXIS 42984, *12

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the materials plaintiffs seek from the "felony" files is L. Marcus, Federal Practice and Procedure § 2288, at 655-65

irrelevant to this action and need not be produced (Docket No. (Civil 2d 1994). "Parties may

124, County Defs. Atty. Reply Affirm. PP3, 6). The County obtain discovery regarding any matter, not privileged, that is

Defendants call these documents "non-strip search" relevant to the claim or defense of any party, including the

documents to reaffirm that they are not relevant to this strip existence, description, nature, custody, condition, and location

search case (id. P7). They contend that plaintiffs' alternative of any books, documents, or other tangible things and the

request [*13] to inspect the original documents would be identity and location of persons having knowledge of any

"unnecessary, impractical and would result in significant discoverable matter." Fed. R. Civ. P. 26(b)(1).

delay to the case" (id. P21) since the original documents, obtained from several locations and returned to them II. Protective Order

following production, would need to be retrieved again from their original locations (id. PP23-25). They state that gathering again the original documents, when duplicates were made and produced, would be burdensome and timeconsuming (id. P31).

The County Defendants argue that the documents that were in the same files as the three produced e-mail messages are not relevant to this case. The County Defendants certified their good faith in avoiding this motion by arguing that the documents sought were not responsive to plaintiffs' demand

DISCUSSION

and then offering production of these documents under an confidentiality stipulation that plaintiffs rejected (Docket No.

This latest series of motions revolve around the question of 116, County Defs. Atty. Aff. P17; see Docket No. 120, Pls.

whether (or upon what conditions) defendants should be Atty. Affirm. P9, Ex. G).

compelled to produce what plaintiffs term "felony" documents, the about 500 pages of documents that had with III. Motion to Compel

them the three e-mail messages from defendant Gipson. The County Defendants seek to preclude their disclosure while plaintiffs seek their production and allowing them to inspect the original documents.

Plaintiffs have outlined their attempts to resolve this matter short of their present motion (Docket No. 120, Pls. [*16] Atty. Affirm. PP9, 16, Exs. G, H, K), certifying their good faith efforts toward a non-judicial resolution. They

I. Applicable Discovery Standards

contend that they asked for these documents and defendants initially agreed to produce them.

Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an order compelling discovery, with that IV. Resolution

motion including a certification that the movant in good faith conferred or attempted [*14] to confer with the party not A. County Defendants' Motion for a Protective Order

making the disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A). Similarly, under Rule 26(c), prior to obtaining a protective order the movants must certify that they have in good faith conferred or attempted to confer with the other affected parties in an effort to resolve the dispute without court intervention, Fed. R. Civ. P. 26(c). Under Rule 26(c), the Court has power to protect against abuses in discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984). The appropriateness of a protective order is a balance of the litigation needs of the requesting party and the protectable interests of the party from whom discovery is sought. Mitchell v. Fishbein, 227 F.R.D. 239, 245 (S.D.N.Y. 2005). This Court has broad discretion in issuing such a protective order. Seattle Times, supra, 467 U.S. at 36.

It is questionable how non-strip search documents, including those regarding sexual harassment, HIPPA authorizations, suicide attempts, or inmate assaults, are relevant to plaintiffs' strip search claims. While plaintiffs proclaim that this action "addresses the willful misconduct and incompetence of public officials in violating the civil rights of tens of thousands of pretrial detainees" (Docket No. 126, Pls. Memo. of Law at 3), the particular violation alleged here is strip searches; other conduct, however egregious in the abstract, is not now pending before this Court by these plaintiffs. But all that is in the record is counsel's representation of what those 500 or so documents contain, without a log giving general descriptions of particular documents therein. Given that three relevant email messages (and other documents, according to plaintiffs) were included with that 500, it is possible that

Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles [*15] A. Wright, Arthur R. Miller & Richard

other, [*17] relevant, but yet to be produced, documents may exist. The County Defendants did not create a log generally identifying the documents separately, although they alleged to plaintiffs that they had. The County Defendants offered to furnish these documents for in camera inspection (Docket No.

116, County Defs. Atty. Aff. P20). The Court is reluctant to

2006 U.S. Dist. LEXIS 42984, *17

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serve as the screen for defendants' production each time there objections to the disclosure, see 8A Charles A. Wright, Arthur

is a discovery dispute (and disfavors this piecemeal fashion of R. Miller & Richard L. Marcus, Federal Practice and

raising objections to discovery and eventual multiple motions Procedure § 2213, at 425, 427 (Civil 2d ed. 1994), thus, the

to compel). Instead, the County Defendants are to produce a responding party has some control as to how it will produce

log of the 500 or so documents, identifying the document by the items demanded, see id. at 427 & n.12. Under Rule 34(b),

Bates stamped numbering, date, sender, intended recipient, the responding party is to produce materials "as they are kept

subject and other identifying information, indicating for each in the ususal course of business or shall organize and label

document the reasons for their non-production with enough them [*20] to correspond with the categories in the request."

specificity that the Court and plaintiffs could determine the The County Defendants, in their initial response to plaintiffs'

reasons why a given document is not being produced. If this demands (see Docket No. 120, Ex. B), offered to make

log, like a privilege log, is not specific enough, or if plaintiffs supplemental materials available at defense counsel's offices

challenge the classification of any listed documents, the Court at a mutually convenient date. The nature of plaintiffs' latest

may require in camera inspection of these documents to motion should cause defense counsel to redouble their efforts

determine their relevance to this [*18] action, here strip to review their existing materials for responsive documents as

search claims by non-felony detainees. Defendants, of course, well as their Rule 26(e) obligations to supplement their

are free to serve responsive documents found in the process of production. The exercise of creating and serving the

creating this log without awaiting plaintiffs' demand or further "objections" log should avoid the necessity of having

Court action.

plaintiffs' counsel inspect defense counsel's files.

The County Defendants have twenty (20) days to serve and file this log. Plaintiffs will then have ten (10) business days to respond identifying any particular document or class of documents they still seek produced and the reason why they dispute defendants' characterization of the relevance of those documents. This process will be performed expeditiously and previously set deadlines for this case, including class certification motion, shall not be adjourned.
Thus, the County Defendants' motion for a protective order (Docket No. 116) is denied in part, granted in part (as to movants' offer to produced the disputed documents for in camera inspection); plaintiffs' motion to compel (Docket No. 120) is granted in part (as to production of a "objections" log of the documents in question).
B. Plaintiff's Motion to Compel
As for plaintiffs' request to inspect defendants' original records (Docket No. 120), that request is denied. Plaintiffs' [*19] request is burdensome, given that defendants have returned the documents to their original locations and the request ventures close to the border of attorney-work product, that is challenging defense counsel's decisions of what they believe is relevant and responsive to plaintiffs' discovery demands by reviewing the originals of the materials culled by defense counsel. Despite stating their doubts about the extent of the County Defendants' production, plaintiffs have not cited authority for this unusual remedy. In responding to a Rule 34 discovery demand, the responding party has to serve a response either agreeing with the discovery process and a schedule set forth by the demanding party, set forth a different schedule, or set out the responding party's

V. Parties' Acrimony
Finally, the moving papers from plaintiffs and defendants are replete with attacks this Court has cautioned the parties against. For example, plaintiffs accuse defense counsel of engaging in a "pattern of deception and discovery abuse" (Docket No. 120, Pls. Atty. Affirm. P14) and reporting defense counsel's conduct during depositions (id.) (but not seeking sanctions for that conduct). They called defendants' mandamus petition "frivolous," causing plaintiffs' counsel to distrust the defense (Docket No. 126, Pls. Atty. Reply [*21] Affirm. P4). Defense counsel vehemently deny this, calling plaintiffs' counsel's statements false and "offensive," "inaccurate and uncivil" (Docket No. 124, County Defs. Atty. Affirm. PP33, 34). While both sides assert that they attempted in good faith to resolve this discovery dispute, their papers show that their "good faith" was, at best, at the margin.
Unfortunately, the discovery rules do not provide for sanctions payable to the Court for counsel's or party's conduct; all of Rule 37 sanctions are in terms of the injury suffered by a party in the discovery process. But other provisions, such as 28 U.S.C. § 1927 for unreasonable and vexatious conduct by counsel and Federal Rules of Civil Procedure 16(f) (for failing to obey the Court's pretrial orders, including the Order, Docket No. 52, to avoid such conduct going forward), governs the conduct of counsel in this case.
Counsel continue to be reminded of this Court's admonition raised first in the earliest discovery Order entered that
"the Court will no longer countenance the acrimony and bitterness in which pretrial

2006 U.S. Dist. LEXIS 42984, *21

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matters have been handled. The

sniping, [*22] sparring, and gamesmanship must For the reasons stated above, the County Defendants' motion

stop. If it persists, however, the Court may resort to for a protective order (Docket No. 116) is denied in part,

various devices under the Rules and within its granted in part as described in detail above. The County

inherent supervisory authority to control the conduct Defendants are to produce an "objections" log, describing the

of the parties and counsel in this case, for example micro management of discovery or sanctions under

documents they decline to produce to plaintiffs and the reasons for that declination, within [*23] twenty (20) days;

Rules 11, 16(f), 37, and 28 U.S.C. § 1927 for plaintiffs may respond to the contents of this log within ten

unreasonable and vexatious conduct by counsel. This case needs to get to its merits and not dwell on

(10) business days. As a result, plaintiffs' motion to compel (Docket No. 120) is granted in part in so far an the

arguments for the sake of vexatious litigation. "objections" log will be created.

Continuing down the current path of this action will inevitably lead to further delays, added expense, and

So Ordered.

ultimately justice denied."(Docket No. 52, Order, at 35, footnote omitted). The Court is still watching for

Honorable Hugh B. Scott

such conduct and, when appropriate, will not hesitate to impose its own control to avoid such conduct in

United States Magistrate Judge

the future.

Dated: Buffalo, New York

CONCLUSION

June 26, 2006