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USDC ED NY Grants Opposition to Quash Depositions in Murder/Rape

A magistrate judge at the United States District Court for the Eastern District of New York granted in November 2011 the Plaintiff’s motion opposing Defenses’ motion to quash deposition notices and notice of subpoena in a civil case resultant from vacated convictions and sentences of Plaintiffs in a 1984 murder and rape. Plaintiffs Kogut, Restivo, and Halstead saw their convictions overturned  in 2003, prevailed in retrial for Kogut in 2005 (Restivo and Halstead were not retried), and initiated civil action against the Nassau County Attorney’s Office and Police Department thereafter, alleging false arrest and other related offenses.

The object of the deposition and subpoena was the work product of Nassau County Police Detective Robert Hillman, investigator from May 10, 2010, for the Nassau County Attorney’s Office. Hillman, investigating Kogut’s civil suit, used various detective’s ploys to case a net of inquiry- Plaintiffs sought to discover the information thus gleaned. Defendants resisted, launching the motion to quash, using as justification “the attorney work product doctrine.” Plaintiffs opposed the motion, advancing a) the documents created by Hillman were part of a criminal investigation and thus not protected; b) the Defendants waived work product entitlement in any case by not claiming the product on a privilege log; and c) that they, the Plaintiffs, have a substantial need for the materials notwithstanding privilege.

The Judge in analysis referenced three mandatory prerequisites for claiming work product, of which the third was not consonant with compliances, (the material) was prepared “by or for a party, or by his representative.” Nassau County Administrative Code requires the transfer of assignment of detectives to the office of the D.A. be signed off by the county Executive. This was not done. Hillman was not a representative. The judge, in addition, criticized Hillman’s investigative practices, citing misuse of his station as a police officer.

Plaintiffs also asserted Defendants waived their entitlement to work product privilege by not logging the material under scrutiny into a privilege log until after the matter was in contention. Defendant maintained the Hillman work product was non-responsive to the wording of Plaintiff’s request for production of documents. The judge found this “nothing short of incredible,” that the request plainly included the Hillman work-product, and that absent presence on a privilege log the material should have been produced and as such constituted a waiver of the exclusion.

The judge held the finding of substantial need superfluous in light of other findings herein and ordered Detective Hillman’s work product considered unprotected. He denied the motion to quash. See: Kogut v. Nassau Co., USDC ED NY (November 14, 2011) Order No: CV 06-6695 (JS)(WDW). 

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Related legal case

Kogut v. Nassau Co.