Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., 11 Civ. 6746 (RKE)(HBP)

• Decision Date: 04 June 2014
• Docket Number: 11 Civ. 6746 (RKE)(HBP)
• Parties: AUTOMOBILE CLUB OF NEW YORK, INC., d/b/a "AAA New York" and "AAA New Jersey, Inc.", Plaintiffs, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.
• Court: U.S. District Court — Southern District of New York

AUTOMOBILE CLUB OF NEW YORK, INC.,d/b/a "AAA New York" and "AAA New Jersey, Inc.", Plaintiffs, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.

11 Civ. 6746 (RKE)(HBP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: June 4, 2014

OPINIONAND ORDER

PITMAN, United States Magistrate Judge:

I. Introduction

By notice of motion dated August 6, 2013 (Docket Item 91), Automobile Club of New York, Inc., doing business as "AAA New York" and "AAA New Jersey" (collectively "AAA") move to compel the production of documents withheld by the Port Authority of New York and New Jersey (the "Port Authority") pursuant to the deliberative process privilege. For the reasons set forth below, AAA's motion is denied.II. Facts

A. Relevant Factual and Procedural Background

The facts and allegations in this action are set forth in the decision of the Honorable Richard J. Holwell, United States District Judge (retired), addressing AAA's motion for a preliminary injunction and defendant's cross motion to dismiss, Auto Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., 842 F. Supp. 2d 672 (S.D.N.Y. 2012), and my prior Opinion and Order, Auto Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., 297 F.R.D. 55 (S.D.N.Y. 2013), and may be briefly summarized.

AAA alleges that the Port Authority approved certain toll increases in the Port Authority's Integrated Transportation Network ("ITN") in order to fund, among other things, real estate development at the World Trade Center site (Complaint, dated Sept. 27, 2007, (Docket Item 1) ("Compl.") ¶¶ 34-45). AAA contends that these toll increases violate the dormant Commerce Clause because they were enacted to fund projects outside the ITN Network, and, therefore, (1) do not represent a fair approximation of the use of ITN facilities and (2) are excessive in relation to the benefits conferred to toll payers (Memorandum of Law in Support of Plaintiffs' Motion for a Preliminary Injunc-tion, dated Sept. 26, 2011, (Docket Item 32) ("Pls.' P.I. Mem.") at 10). AAA also contends that the toll increases violate the Surface Transportation and Uniform Relocation Act of 1987 (the "Highway Act"), 33 U.S.C. § 508, because they are not "just and reasonable" (Pls.' P.I. Mem. at 6-7). AAA sought a preliminary injunction to reverse the toll increases, and continues to seek declaratory and injunctive relief (Compl. ¶¶ 46-51).

Judge Holwell denied AAA's motion for a preliminary injunction and converted the Port Authority's cross-motion to dismiss into a motion for summary judgment, reserving decision on the cross-motion pending the completion of relevant discovery. Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., supra, 842 F. Supp. 2d at 681. Judge Holwell's decision confined discovery to "financial documents or correspondence not yet provided for public review." Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., supra, 842 F. Supp. 2d at 61. Several subsequent orders limited discovery to ITN "revenues and expenses for the years 2007 forward" and "the reasons for the toll increases" (Docket Items 41 & 69).

Pursuant to Fed.R.Civ.P. 26 and Local Civil Rule 26.2(c), the Port Authority provided AAA with a privilege log that identified withheld documents on a categorical basis (Ex. B to the Declaration of Kevin P. Mulry, Esq., dated Aug. 6, 2013,(Docket Item 92) ("Mulry Decl.")). Among other things, the privilege log defined eight categories of documents -- 17, 18, 19, 20, 24, 25, 26, and 27 -- over which the Port Authority claimed the deliberative process privilege and listed for each category the "Date," "Doc Type," "Authors," "Recipients," "Privilege Description" and "Privilege Reason" (Ex. B to Mulry Decl.).

AAA subsequently moved for an Order directing that the Port Authority supplement its privilege log. AAA contended that the privilege log did not provide sufficient detail in the "Privilege Description," "Date," "Authors," and "Recipients" columns and defined the term "Client" too broadly (Letter from Kevin P. Mulry, Esq., dated Feb. 27, 2013, at 2-3).

In a Memorandum Opinion and Order dated May 8, 2013 ("May 8 Order"), I granted AAA's motion in part. In that Order, I concluded that certain aspects of the privilege log provided sufficient detail, while other aspects needed to be supplemented. For example, with respect to "Privilege Descriptions" in the Port Authority's privilege log, I concluded:

These descriptions provide an adequate basis for AAA to evaluate the Port Authority's assertion of the deliberative process privilege. The descriptions state that these documents reflected the personal opinions of their authors, rather than the stated policy of the agency. Moreover, the descriptions go beyond a generic recitation of the elements of the deliberative process privilege. They specifically identify the decision -- the 2011 proposed toll and fare increases -- and pro-vide an overview of the opinions, options and recommendations that the Port Authority evaluated. This information is relevant in assessing whether the documents were created as part of the process by which the Port Authority makes decisions. While I express no opinion on whether the Port Authority has properly asserted the deliberative process privilege, I do find that the description of the documents' contents is sufficiently detailed.

Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., supra, 297 F.R.D. at 61. However, with respect to the Port Authority's use of the word "Client" in its privilege log, I found:

As defined by the Port Authority, "[t]he term 'Client' means and refers to the Port Authority, its employees, commissioners, and/or individuals at the New York or New Jersey governors' offices in the course of their duties to oversee the Port Authority." This definition essentially sweeps in all employees of the Port Authority, without distinguishing the role that a particular author or recipient of a withheld document played at the Port Authority.

* * *

Accordingly, the Port Authority is directed to supplement its index by providing the number of individuals that comprise the "Authors" and "Recipients" of each of the eight challenged categories. If there are ten or fewer individuals, the Port Authority is directed to specifically identify these individuals. This limited supplementation is appropriate given that the purpose of categorical privilege logs, as detailed above, is to reduce the potential burdens imposed by a document-by-document privilege log in cases involving high volumes of privileged material. If there are only a relatively small number of individuals encompassed within the term "Client" as it is used in each of the challenged categories, the risk of burdensomeness is low and the efficiencies associated with a categorical log are not as compelling. If there are more than ten individual "Authors" or "Recipients" in any category,the Port Authority is to identify, by name and title, the most highly placed individual and the least highly placed individual with respect to each category.

Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & N.J., supra, 297 F.R.D. at 62-64.

Pursuant to my May 8 Order, the Port Authority submitted a revised privilege log accompanied by the declaration of Patrick J. Foye, Executive Director of the Port Authority, setting forth the factual basis for the agency's assertion of the privilege (Ex. A & C to Mulry Decl.).

B. The Instant Dispute

AAA now seeks an Order compelling the production of the 339 documents the Port Authority continues to withhold pursuant to the deliberative process privilege (Docket Item 91). AAA claims that the privilege has not been invoked by the appropriate officials and that the privilege log provides insufficient information to assess the assertions of the privilege. In the alternative, AAA claims that, on balance, its need for the underlying information outweighs the Port Authority's interest in keeping its internal deliberations confidential (Plaintiffs' Memorandum of Law in Support of Motion to Compel, dated Aug. 6, 2013, (Docket Item 93) ("Pls.' Mem.")).III. Analysis

A. Applicable Law

1. The Deliberative Process Privilege¹

The deliberative process privilege was comprehensively described by the Honorable Richard J. Sullivan, United States District Judge, in MacNamara v. City of New York, supra, 249 F.R.D. at 77-78:

"The deliberative process privilege is designed to promote the quality of agency decisions by preserving and encouraging candid discussion between officials. It is based on 'the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.'" Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005) (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001)). An "inter- or intra-agency document" may be subject to the privilege if it is both (1) "predecisional" and (2) "deliberative." La Raza, 411 F.3d at 356 (quoting Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999)) (additional internal citations omitted).

A document is predecisional "when it is prepared in order to assist an agency decisionmaker in arriving at his decision." Tigue v. United States Dep't of Justice, 312 F.3d 70, 80 (2d Cir. 2002). The Second Circuit has noted some factors to consider in determining whether a document is "predecisional," including whether the organization asserting the privilege can (1) "pinpoint the specific . . . decision to which the document correlates" and (2) "verify that the document precedes, in temporal sequence, the 'decision' to which it relates." Grand Cent. P'ship, 166 F.3d at 482 (quoting Providence Journal Co. v. United States Dep't of the Army, 981 F.2d 552, 557 (1st Cir. 1992)).

A document is deliberative when it is "actually . . . related to the process by which policies are formulated." Grand Cent. P'ship, 166 F.3d at 482 (citing Hopkins, 929 F.2d at

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