Case 1:17-cv-03827-SJ-SJB Document 89 Filed 10/28/19 Page 1 of 7 PageID #: 798

October 28, 2019

By ECF
Honorable Sanket J. Bulsara
United States Magistrate Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201

Re: Benitez v. City of New York, et al.

Dkt. No. 17-cv-03827 (SJ)(SJB)

Dear Judge Bulsara:

I write on behalf of Plaintiff for an Order compelling Defendant City of New York to
comply with Plaintiff’s Fifth Set of Requests for the Production of Documents and, consistent with
the Court’s Order dated August 25, 2019, to produce Queens County Assistant District Attorney
Deborah Pomodore for a deposition no later than November 30, 2019. The parties have conferred
to no avail. We seek prompt disclosure of the requested discovery because it directly relates to
upcoming Monell depositions of Acting D.A. John M. Ryan and other executives beginning
November 5.

Relevant Factual Background

This lawsuit alleges individual, investigative misconduct by two detectives and a Queens
County ADA (not Ms. Pomodore) in manufacturing false identification evidence at a lineup; it
also seeks to hold the City of New York liable for Brady and other fair trial violations which also
were a substantial cause of Plaintiff’s wrongful conviction. It is relative to this Monell claim that
we seek the documents, which relate to the Office’s response to Brady-violation allegations and
findings in 2012-13 concerning the prosecution of another criminal defendant, Petros Bedi.

Plaintiff’s Amended Complaint alleges that the misconduct for which the City is liable
includes Queens County prosecutors’ withholding of Brady material, influencing a witness to give
false testimony, failing to correct false testimony, presenting plainly inadmissible hearsay
testimony at trial in violation of Plaintiff’s Confrontation Clause and Fair Trial rights, and making
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Hon. Sanket J. Bulsara
October 28, 2019
Page 2
   
false or misleading argument during summation. It alleges this conduct was proximately caused
by the D.A.’s Office’s deliberate indifference to such misconduct through its failure to adequately
train, supervise and discipline its employees in such areas.

In particular, the evidence obtained in discovery so far shows that the Office was
deliberately indifferent to Brady compliance by utterly failing to establish, or train prosecutors in,
any information management system regarding Brady material. Prosecutors were not trained to
make, and in fact were discouraged from making, records of such information and from searching
it out. Meanwhile, they were evaluated on their success in winning convictions, but virtually never
disciplined or evaluated for violating the fair trial rights of the defendants they prosecuted. As a
result, trial prosecutors would either deliberately, recklessly, negligently, or ignorantly fail to
disclose impeachment and exculpatory information that Brady required them to disclose. The
evidence in this case shows that Brady material was withheld either deliberately or due to the
absence of any information management system.

The records that Plaintiff seeks from the Bedi prosecution are likely to support Plaintiff’s
Monell theory. In that case, prosecuted by ADA Pomodore, Bedi, in 2012, 12 years after his
conviction, obtained portions of the witness security file of one of two eyewitnesses, Seraphim
Koumpouras. In his trial testimony, Koumpouras claimed he had been assisted in relocating by
D.A.’s detective-investigators because he feared defendant Bedi, but he falsely denied that the
Office had paid any of his expenses. ADA Pomodore not only failed to correct his false testimony
but argued in summation he had been completely honest and had no motive or interest to lie. The
undisclosed records showed that, contrary to being in fear, he initially had refused any relocation.
Then, they showed, in addition to receiving thousands of dollars in housing payments on his behalf,
he signed 16 cash receipts acknowledging personal receipt of approximately $3,000 in cash.

On August 13, 2012, Bedi filed a 440 motion seeking to vacate his conviction. Before
doing so, his counsel handed the motion to the D.A.’s Office to review, but it decided to resist the
motion. The Office’s papers, prepared in part by District Attorney Brown’s chief counsel, Robert
J. Masters, defended Pomodore on the basis that, due to the Office’s practice of walling off witness
security records from trial prosecutors, she did not have actual knowledge of the records’ contents.
On March 13, 2013, the court vacated the conviction on the basis that Pomodore had violated her
constitutional obligation to find out and disclose impeachment information in her Office’s
possession and to correct her witness’s false testimony.

Earlier this year, in Bellamy v. City of New York, No. 12-cv-1025 (E.D.N.Y.) (AMD)(PK),
the plaintiff asked for permission to file a motion to compel the City to disclose emails between
Pomodore and the prosecutors who prepared the D.A.’s opposition papers in order to determine
what was known or discussed about her knowledge and actions in the Bedi trial. Such information
was relevant, the plaintiff contended, to prove his theory in that case that the Office had a deliberate
policy of walling off witness security information so that it would not be adequately disclosed at
trial. See Bellamy, No. 12-cv-1025 (E.D.N.Y.) (AMD)(PK), Parties’ Joint Status Letter dated May
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Hon. Sanket J. Bulsara
October 28, 2019
Page 3
   
8, 2019, ECF No. 221, at 7. The City opposed the plaintiff’s request on the basis, inter alia, that
the D.A.’s Office had “acknowledged” that Pomodore had not received all the Koumpouras
information and records and thus Bellamy already had all he needed to prove his theory. See id.,
ECF No. 221, at 8-9. At oral argument on May 14, the court accepted the City’s view. See id.,
5/14/19 H. Tr. 22-23. In its written order, the court denied Bellamy’s request to file a formal
motion to compel but gave him “leave to renew upon a showing that there is a substantial need for
such discovery.” Id., Minute Entry dated May 14, 2019.

Thereafter, in response to a different discovery request, the City disclosed a handful of

heavily redacted e-mails and notes to Bellamy’s counsel pertaining to Bedi which are marked
“Confidential” under a protective order in that case. These materials appeared to have been
prepared following the Office’s receipt of the draft 440 motion and in reaction to coverage of the
motion’s filing in the news media.1

On September 10, 2019, Benitez served upon the defendants a Fifth Set of Requests for the
Production of Documents, all pertaining to the Bedi case. Benitez sought disclosure of all
memoranda, e-mails and correspondence by and between Pomodore, the Office’s chief executives,
and Jennifer Hagan, the appeals attorney who, along with Masters, prepared the Office’s
opposition to Bedi’s 440 motion, from May 1, 2012 (when Bedi’s counsel provided a pre-filing
copy of the motion) through September 30, 2013, which was about six weeks after the motion was
granted; all witness security records for the two witnesses, Koumpouras and James Mirtsos2; all
statements by Pomodore concerning her knowledge of witness security expenditures on behalf of
such witnesses; statements by Albert Vilardi (former chief of the witness security program),
concerning his knowledge of such expenditures and any interactions he had with the two witnesses;
all protective orders, and applications therefor, signed by the court allowing the People to withhold
any information about the two witnesses from the defense, and all material witness applications
and warrants in connection with the Bedi prosecution. For a variety of reasons, addressed below,
the City opposed the Fifth Set of Document Requests in its entirety. A copy of Plaintiff’s discovery
demand is attached as Exhibit A, and Defendants’ response is attached as Exhibit B.

Earlier this month, the parties to this case, and to two other Monell cases involving the
Queens D.A.’s Office, Bellamy and Taylor v. City of New York, et al., 18-CV-5500 (NG)(ST),
agreed to a joint Monell deposition and discovery plan under which certain depositions will be
taken jointly for purposes of all three cases and all Monell document discovery will be shared.
This stipulation was submitted for the Court’s approval on October 25, 2019. See ECF No. 87-1.
Under this stipulation, the parties, anticipating this motion, agreed: “[N]othing … precludes a party
from presenting to an appropriate judge an argument that such issue is not definitively resolved or

1
Undersigned counsel at the time of this disclosure was “of counsel” to Bellamy’s attorneys of record, and has since
formally appeared, along with Emery, Celli, Brinckerhoff & Abady, as one of Bellamy’s attorneys of record. The
undersigned also represented Bedi.
2
Plaintiff inadvertently omitted Koumpouras from this particular request but Defendants have agreed to deem the
request to encompass his records as well as any of Mirtsos.
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Hon. Sanket J. Bulsara
October 28, 2019
Page 4
   
that the facts or the claims in a particular case distinguish the ruling made by Judge Kuo [in the
Bellamy case].” Id., ¶ 4.

The undersigned also represents the plaintiff in the Taylor case. The requested Bedi records
are relevant to the plaintiff’s theory there as well. Plaintiff there contends that the trial prosecutor
deliberately withheld some impeachment material and recklessly failed to obtain other
impeachment material in other files in the Office she knew existed, because, as in the Benitez case,
she had been encouraged to win at all costs, had no fear of disciplinary consequences, and did not
search out Brady material in Office files possessed by other prosecutors.

Argument

Defendants object wholesale to Plaintiff’s fifth discovery demand. They argue that the
Bedi-related records are not relevant or proportional to the needs of this litigation, where Benitez’s
case does not involve suppression of witness security benefits, the D.A.’s Office has already
acknowledged that Pomodore did not know about the witness security benefits, and Plaintiff’s
counsel has access to the limited disclosures concerning witness security made in Bellamy.
Defendants also argue res judicata and work product and deliberative process privileges.

The four requirements of res judicata include: “(1) the identical issue was raised in a
previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding;
(3) the parties had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue
was necessary to support a valid and final judgment on the merits.” Wyly v. Weiss, 697 F.3d 131,
141 (2d Cir. 2012) (internal quotation marks and citation omitted).

Defendants have failed to meet any, let alone all, of the four requirements. First, Plaintiff
Benitez was, and is not, a party to the Bellamy litigation. Nor may Defendants argue that Benitez,
although a nonparty, should nonetheless be precluded because of his similar interests to Bellamy,
or because they now share the same counsel. There is no broad “virtual representation” exception
to the general rule against extending the preclusive effect of a judgment to a nonparty, see Taylor
v. Sturgell, 553 U.S. 880, 904 (2008), and the showing of parallel interests or even the use of the
same attorney in both suits is not a sufficient basis for preclusion, Algie v. RCA Glob. Commc’ns,
Inc., 891 F. Supp. 839, 853–54 (S.D.N.Y. 1994), aff’d, 60 F.3d 956 (2d Cir. 1995). Moreover,
here, undersigned counsel was a mere consultant to Bellamy at the time the Bedi issue was litigated
and did not handle that motion.

Neither has Plaintiff Benitez been given a full and fair opportunity to litigate his entitlement
in his case to the Bedi materials. The Bedi materials are highly relevant to this case for various
reasons that were not submitted to Judge Kuo or ruled upon by her when the issue, with no briefing
by the plaintiff, was decided in Bellamy after a short oral argument. Benitez does allege in his
complaint, as does Bellamy, that the Office had a practice of walling off impeachment material
concerning witnesses from trial prosecutors. He alleges such a practice was so brazenly
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Hon. Sanket J. Bulsara
October 28, 2019
Page 5
   
unconstitutional that it communicated to prosecutors the Office’s attitude of deliberate indifference
to Brady violations. However, Benitez’s Monell theory is much more comprehensive than that.

Benitez’s Amended Complaint alleges that the D.A. and his executives were deliberately
indifferent to Brady and related fair trial violations and communicated that all that really mattered
was winning. They deliberately failed to adopt recordkeeping policies and practices that would
reasonably bring about Brady disclosure, failed to investigate or discipline prosecutors who
committed such violations, and meanwhile rewarded prosecutors for winning. In this case, the
Office’s practice not to keep records caused the highly foreseeable result that the grand jury
assistant would not know that the lineup had been so suggestive that the identification was totally
unreliable and could not serve as the basis for the indictment. It further resulted in the subsequent
ignorance of the hearing and trial prosecutors about Brady material, thereby making it impossible
for them to even consider whether to disclose it to the defense. The failure to properly supervise,
investigate and discipline prosecutors concerning their Brady and fair trial obligations further
encouraged the various prosecutors who were involved in this case to be indifferent to their
obligations to record, find out about, and disclose such information and, relatedly, to refrain from
offering and to fail to correct false or misleading evidence and argument.

Moreover, the time frame, subject matter, authors, and recipients of the e-mails requested
here somewhat overlap with, but are broader than those requested in Bellamy. Compare Ex. C (e-
mail search parameters sent by Plaintiff’s counsel to defense counsel), with Bellamy v. City of New
York, No. 12-cv- 1025 (E.D.N.Y.) (AMD)(PK), ECF No. 221-1, ¶ 15. Plaintiff specifically seeks
all witness security records for Koumpouras (the entire file was not disclosed in Bedi) and any
such records for Mirtsos (none were disclosed at all). He seeks all relevant statements by
Pomodore and the head of witness security, Albert Velardi. And he seeks any material witness
applications and orders which would be relevant to the witnesses’ credibility if they refused to
cooperate and had to be arrested before they appeared in court.

Lastly, Judge Kuo’s ruling was not a “final judgment.” Discovery orders are interlocutory
in nature. See Hardy v. Knapp, 27 F. App’x 24, 26 (2d Cir. 2001). Moreover, Judge Kuo denied
the Bellamy motion without prejudice, and with leave to renew, which necessarily indicates that
her decision was not final. Accord In re Greenwald, 48 B.R. 263, 270 (S.D.N.Y. 1984) (“A
dismissal without prejudice is not a final determination on the merits of a claim” and is insufficient
for the purposes of res judicata).

The work product privilege, as codified in Fed. R. Civ. P. 26(b)(3), does not apply here.
The party asserting the privilege must establish its requisite elements. See, e.g., U.S. v.
Construction Products Research, Inc., 73 F.3d 464 (2d Cir. 1996). Defendants must show that
“the documents were prepared principally or exclusively to assist in anticipated or ongoing
litigation.” Id. (citations omitted). The burden is a heavy one, and the privilege is recognized
“only to the very limited extent that…excluding relevant evidence has a public good transcending
the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel
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Hon. Sanket J. Bulsara
October 28, 2019
Page 6
   
v. United States, 445 U.S. 40, 50 (1980). Furthermore, the work product privilege is not absolute,
and work product can be produced upon a showing that the party seeking discovery has a
substantial need for the materials and that the party is unable without undue hardship to obtain the
substantial equivalent of the materials by other means. Fed. R. Civ. P. 26(b)(3)(A)(ii).

Here, Defendants have provided no privilege log, as required by Fed. R. Civ. P. 26(b)(5).
They simply repeat the same boilerplate objection for all six document requests. They thus make
it impossible to credit or evaluate their claim with regard to individual documents.

Second, the work product privilege does not apply to materials prepared by a nonparty,
even if the material was created in contemplation of that nonparty’s own pending or anticipated
litigation, because the privilege, as codified in Rule 26(b)(3), was intended to preserve the
“competitive balance between the litigants, a concern not directly implicated by discovery from a
non-party.” See Ramsey v. NYP Holdings, Inc., No. 00 CIV.3478(VM)(MHD), 2002 WL
1402055, at *6-7 (S.D.N.Y. June 27, 2002) (collecting cases). This principle has been applied to
a nonparty District Attorney’s Office for records sought in § 1983 litigation. See, e.g., Howell v.
City of New York, No. CV06-6347(ERK)(VVP), 2007 WL 2815738, at *2 (E.D.N.Y. Sept. 25,
2007) (Pohorelsky, M.J.); Abdell v. City of New York, No. 05 CIV. 8453 KMK JCF, 2006 WL
2664313, at *3 (S.D.N.Y. Sept. 14, 2006).

Third, where the central issue in this litigation is the executives’ investigation into the
allegations of prosecutorial misconduct and their state of mind is itself in dispute, the material
sought is factual and the work product privilege does not apply. Moreover, much of the material
concerns the Office’s formulation of a public response to negative news media coverage, and thus
was not prepared for the primary or exclusive purpose of assisting in anticipated or pending
litigation. Even if some of the requested information is characterized solely as opinion or legal
strategy, Plaintiff has a substantial need for the materials. They are the best evidence of
policymakers’ candid thinking and thus of their state of mind. The upcoming Monell depositions
are not a sufficient alternative. The events occurred many years ago, the deponents may lack full
memory, and they are motivated to give self-serving testimony that the documents may contradict.

Nor does deliberative process privilege apply. As discussed above, in the context of this
case, where the state of mind is a factual issue, much of the requested information is “purely
factual.” MacNamara v. City of New York, 249 F.R.D. 70, 89 (S.D.N.Y.2008). Second, the
deliberative process privilege does not protect deliberative communications that were “part of a
routine and ongoing process” to determine whether there had been compliance with existing
procedures and whether disciplinary action was warranted, see, e.g., Charles v. City of New York,
No. 11-CV-0980 KAM JO, 2011 WL 5838478, at *1 (E.D.N.Y. Nov. 18, 2011) (Orenstein, M.J.).
Third, “Where [as here] the decision-making process itself is the subject of the litigation, the
deliberative privilege may not be raised as a bar against disclosure of critical information.” Burka
v. New York City Transit Auth., 110 F.R.D. 660, 667 (S.D.N.Y. 1986) (citations omitted) (text in
brackets added); see also, e.g., Marisol A. v. Giuliani, No. 95 Civ. 10533(RJW), 1998 WL 132810,
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Hon. Sanket J. Bulsara
October 28, 2019
Page 7
   
*7 (S.D.N.Y. Mar. 23, 1998) (“The mental process, which are normally privileged … may also be
discoverable where there are allegations of misconduct or misbehavior.”). In particular, “[i]n a
civil rights action where the deliberative process of State or local officials is itself genuinely in
dispute, privileges designed to shield that process from public scrutiny must yield to the overriding
public policies expressed in the civil rights laws.” Grossman v. Schwarz, 125 F.R.D. 376, 381
(S.D.N.Y. 1989).

Here, Plaintiff Benitez is entitled to challenge the Office’s unsubstantiated position in the
Bedi litigation, and the City’s “admission” in Bellamy, that Pomodore did not have actual
knowledge of the contents of the witness security files. Suspiciously, Pomodore provided no
affidavit in Bedi and has resisted being deposed in this case for a year. Rather than constitute an
“admission,” the D.A.’s position in Bedi that she lacked actual knowledge was asserted to protect
her against a finding that might lead to discipline by the court’s Grievance Committee; it was self-
serving. Moreover, Plaintiff is entitled to find out whether her failure to disclose resulted from
indifference, wilfulness, recklessness, or negligence, and relatedly whether executives
conscientiously investigated this issue with an eye towards disciplining her for her constitutional
violations, were indifferent themselves, or, worse still, endorsed and ratified her misbehavior.

Lastly, Defendants have made no showing that disclosure would be burdensome or

oppressive. As to e-mails under Document Request No. 1, Plaintiff provided defense counsel with
a list of narrow search parameters (see Ex. C). We have asked defense counsel to have the
documents ready to produce following this Court’s decision and in time for the upcoming
depositions. We request such disclosure within three days of the court’s decision.

As for ADA Pomodore’s deposition, the City has agreed to produce Pomodore but has
stated she will not appear on the noticed date of November 20 (which Plaintiff scheduled in the
beginning of September), and, despite our numerous requests, has not provided any alternative
dates—Plaintiff has been trying to take her deposition for nearly a year. Should Defendants agree
to a mutually convenient date for Pomodore’s deposition before this motion is decided, Plaintiff
will withdraw this portion of his motion.

Respectfully submitted,

/s/
Joel B. Rudin
Counsel for Plaintiff

cc: Erin T. Ryan, Esq. (by ECF)

Richard Bahrenburg, Esq. (by ECF)
Assistants Corporation Counsel
Counsel for Defendants
Case 1:17-cv-03827-SJ-SJB Document 89-1 Filed 10/28/19 Page 1 of 4 PageID #: 805

LTNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

RICARDO BENITEZ,

Plaintiff, PLAINTIFF'S FIFTH SET OF

REQUESTS FOR THE
-against PRODUCTION OF
DOCUMENTS
THE CITY OF NEW YORK, RAUL LOPEZ,
FRANK LIBRETTO, SERGEANT BRIAN t7 Civ.03827 (SJXSJB)
STAMM, AND TINA GRILLO,

Defendants.

Pursuant to Rules 26,33 and34 of the Federal Rules of Civil Procedure, and Local Rule

26.3,Plaintiff zuCARDO BENITEZ ("Plaintiffl') requests that Defendants THE CITY OF NEW

YORK, RAUL LOPEZ, FRANK LIBRETTO, SERGEANT BRIAN STAMM, and TINA

GRILLO produce for inspection and copying the documents specified herein, on or before

October 10,2019, at the Law Offices of Joel B. Rudin, P.C.,I52 West 57th Street, 8th Floor, New

York, New York 10019.

DEFINITIONS AND INSTRUCTIONS

The following definitions and instructions apply to each of the Requests set forth below

and are deemed to be incorporated therein except to the extent a particular Request may contain

contrary definitions and instructions.

1. In answering the following interrogatories and responding to the following

requests (collectively the "requests"), you shall furnish all information that is available to you,

including information in the possession, custody, or control of your attorneys, accountants,

employees, investigators, experts, representatives, or other agents or servants.

I
Case 1:17-cv-03827-SJ-SJB Document 89-1 Filed 10/28/19 Page 2 of 4 PageID #: 806

2. All documents that respond, in whole or in part, to any portion of any Request,

shall be produced in their entirety, together with all attachments, enclosures, drafts, arid non-

identical copies.

3. Questions regarding the interpretation of these requests should be resolved in

favor of the broadest possible construction.

4. These Requests shall be deemed continuing so as to require further and

supplemental production by Defendants in the event it discovers or obtains additional

information or documents between the time of initial production and the time of hearing or trial.

5. If any information or document is withheld based upon a claim of privilege, state

with specificity the information required by Local Prule26.2.

6. Where any Request calls for the identification or production of electronically

stored documents, a complete forensic or forensic-type search is to be performed by an

individual with access to all centrally stored electronic data, in addition to any other search

performed for such material.

7. Where any Request calls for documents or information that either never have

been, or presently are not, in existence, indicate so in the relevant response.

8. Plaintiff incorporates by reference the Uniform Definitions in Discovery Requests

set forth in Fed. R. Civ. P. 34(a) and Local Rule 26.3.

SPECIFIC DOCUMENT REOUESTS

1. Produce all memoranda, emails, and correspondence prepared or sent between

May 1, 2012, and september 30, 20l3,by or between Richard Brown, John Ryan, Robert

Masters, John Castellano, Daniel Saunders, Brad Leventhal, Charles Testagrossa, Albert Velardi,

Jennifer Hagan, Richard Schaeffer, and Debra Pomodore conceming People v. Petros Bedi,Ind,.

2
Case 1:17-cv-03827-SJ-SJB Document 89-1 Filed 10/28/19 Page 3 of 4 PageID #: 807

No. 4107106 (Sup. Ct. Queens Cty.), and any aspect of that matter, including, but not limited to,

a draft CPL 440 motion to vacate his conviction, the actual filed motion, any investigation by the

Queens County D.A.'s Office during the aforementioned period concerning allegations made in

such draft or filed motion, and news media accounts and inquiries.

2. Produce all Witness Security Program records of the Queens County District

Attomey's Office concerning Dimetrious Mirtsos in connection with his testimony in People v.

Petros Bedi,lnd. No. 4107/06 (Sup. Ct. Queens Cty.).

3. Produce all statements by Debra Pomodore, recorded by her or any of the

individuals listed in Document Request No. 1 above, concerning her knowledge, before or after

the trial in People v. Petros Bedi,Ind. No. 4107/06 (Sup. Ct. Queens Cty.), of witness security

expenditures made to or on behalf of Serafim (aka "Sammy") Koumpouras or Dimetrious

Mirtsos

4. Produce all statements by Albert Velardi, recorded by him or any of the

individuals listed in Document Request No. 1 above, concerning his knowledge of witness

security expenditures made to or on behalf of Serafim (aka "Sammy") Koumpouras or

Dimetrious Mirtsos and any interactions he had with them before or after the trial in People v.

Petros Bedi,lnd. No. 4107106 (Sup. Ct. Queens Cty.).

5. Produce a copy of any and all protective orders signed by the court in People v.

Petros Bedi,Ind. No. 4107i06 (Sup. Ct. Queens Cty.), allowing the names of witnesses to be

redacted or any other information or documents to be withheld from the defense, and all

applications or affidavits submitted in support of the request(s) for such order or orders.

6. Produce all material witness applications, warrants, and orders served on any

witness in connection with People v. Petros Bedi,Ind. No. 4107106 (Sup. Ct. Queens Cty.).

J
Case 1:17-cv-03827-SJ-SJB Document 89-1 Filed 10/28/19 Page 4 of 4 PageID #: 808

PLEASE TAKE NOTICE that Plaintiff will object to the introduction at trial of any

document or information not produced in response to the foregoing Document Requests and to

any evidence any requested document or information which has not been revealed by an

appropriate response to these Document Requests.

Dated: New York, New York

September 10,2019

Yours, etc.,

LAW OFFICES OF JOEL B. RUDIN, P.C

B. Rudin, Esq
est 57th Street, 8th Floor
York, New York 10019
(212) 7s2-7600
Email : jbrudin@rudinlaw.com

Attorneyþr Plaintiff

To: Erin T. Ryan, Esq.

Richard Bahrenburg, Esq.
New York City Law Department
Special Federal Litigation Division
100 Church Street
New York, NY 10007

Attorneys for Defendants

4
Case 1:17-cv-03827-SJ-SJB Document 89-2 Filed 10/28/19 Page 1 of 6 PageID #: 809

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
-X

RICARDO BENITEZ,
DEFENDANTS' RESPONSES AND
Plaintiff, OBJECTIONSTO PLAINTIFF'S
FIFTH SET OF DOCUMENT
-against- REQUESTS

THE CITY OFNEWYORK, RAUL 17-CV-03827(SJ)(SJB)

LOPEZ, FRANK LffiRETTO,
SERGEANT BRIAN STAMM, AND
TINA GRILLO,

Defendants.

Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, defendants

The City of New York, Raul Lopez, Frank Libretto, Sergeant Brian Stamm, and Tina Grillo

(hereinafter referred to collectively as "Defendants") respond and object to plaintiffs Fifth Set of

DocumentRequests as follows:

GENERAL STATEMENT

1. Byresponding to anyrequest, defendants do not concede the materiality ofthe

subject to which it refers. Defendants' responses are made expressly subject to, and without

waiving or intending to waive, any questions, or objections as to the competency, relevancy,

materiality, privilege, or admissibility as evidence or for any other purpose, of any of the

documents or infonnation produced, or ofthe subject matter thereof, in anyproceeding including

the trial ofthis action or any subsequent proceeding.

2. Inadvertent production of any document or information which is privileged,

was prepared in anticipation of litigation, or is otherwise immune from discovery, shall not

constitute a waiver ofanyprivilege or ofanother ground for objecting to discovery with respect
Case 1:17-cv-03827-SJ-SJB Document 89-2 Filed 10/28/19 Page 2 of 6 PageID #: 810

to that document or any other document, or its subject matter, or the information contained

therein, or of defendants' right to object to the use of any such document or the infonnation

contained therein during anyproceeding in this litigation or otherwise.

3. Wifh respect to the request for the production of documents, defendants will

provide, under separate cover, a privilege index, if appropriate.

RE UESTSFORDOCUMENTS

DOCUMENTRE UESTNO. l:

Produce all memoranda, emails, and correspondence prepared or sent between

May 1, 2012, and September 30, 2013, by or between Richard Brown, John Ryan, Robert

Masters, John Castellano, Daniel Saunders, Brad Leventhal, Charles Testagrossa, Albert Velardi,

Jennifer Hagan, Richard Schaeffer, and Debra Pomodpre concerning People v. Petros Bedi, Ind.

No. 4107/06 (Sup. Ct. Queens Cty. ), and any aspect ofthat matter, including, but not limited to,

a draft CPL 440 motion to vacate his conviction, the actual filed motion, any investigation by the,

Queens County D.A. 's Office during the aforementioned period concerning allegations made in

such draft or filed motion, and news media accounts and inquiries.

OBJECTIONS AND RESPONSE TO DOCUMENT RE UEST NO. 1:

Defendants object to Document Request No. 1 on the grounds that it is not

relevant norproportional to the needs ofthe case. These communications arenot relevant to any
party's claim or defense and thus not proportional to the needs of the case? Plaintiffs Monell

theory is unrelated .to witness security as there were no witness security issues in the underlying

criminal case. The position taken by the QCDA is that the documents surrounding the Bedi

proceedings would add nothing to support plaintiffs position because the QCDA acknowledged

that the trial assistant in Bedi did not have all the records, nor did the bial assistant know the

-2-
Case 1:17-cv-03827-SJ-SJB Document 89-2 Filed 10/28/19 Page 3 of 6 PageID #: 811

extent of the expenditures made for the witness. Further, some disclosures has in fact been made

regarding witness security in Bellam v. Cit of New York et al., 12 CV 1025 (AMD) (PK),

which may be used in this matterpursuant to a stipulation entered into by the parties on or about

October 15, 2019. From those documents, plaintiff has enough infonnation to make his

arguments in support of his Monell claim in the event he believes such claim exists, which

Defendants contend it does not. Thus, the burden and expense of the proposed discovery

outweighs its likely benefit when one considers the information already blown by the parties in

regard to disclosures ofwitness security measures in the Bedi case.

Defendants further object because this request calls for privileged information in

seeking communications between attorneys about what legal positions, investigations, attorney

drafts and post-conviction relief was discussed or considered. This material would be protected

by the work product privilege. S.E.C. v.Yorkville Advisors, LLC, 300 F.R.D. 152, 159

(S. D.N.Y. 2014). These materials may also qualify for the deliberative process

privilege. Brennan Ctr. For Justice at NYU Sch. OfLawv. U. S. D 't ofJustice, 697 F.3d 184,

194(2dCir. 2012).

Lastly, Defendants contend that the category of document requests regarding Bedi

contained within the instant request has already been barred firom disclosure pursuant to the

Order dated May 14, 2019, in Bellam v. Cit of New York et al., 12 CV 1025 (AMD) (PK)

(hereinafter "Bellamy Order"). Pursuant to the Bellamy Order, such information is barred from

disclosure unless counsel can show "substantial need for such discovery. " As plaintiffhas failed

to make such showing in this case, and in light of the agreement between the parties to share

documents with Bellam v. Cit of New York et al. Defendants maintain that the issue has

already been decided and invoke the doctrine ofresjudicata.

-3-
Case 1:17-cv-03827-SJ-SJB Document 89-2 Filed 10/28/19 Page 4 of 6 PageID #: 812

DOCUMENTRE UESTN0. 2:

Produce all Witness Security Program records of the Queens County District

Attorney's Office concerning Dimetiious Mirtsos in connection with his testimony in People v.
PetrosBedi, Ind. No. 4107/06 (Sup. Ct. Queens Cty. ).

OBJECTIONS AND RESPONSE TO DOCUMENT RE UEST NO. 2:

See Objection and Response to Document Request No. 1.

DOCUMENT RE TJESTN0. 3:

Produce all statements by Debra Pomodore, recorded by her or any of the

individuals listed in Document Request No. 1 above, concerning her knowledge, before or after

the trial in People v. Petros Bedi, Ind. No. 4107/06 (Sup. Ct. Queens Cty. ), of witness security
expenditures made to or on behalf of Serafim (aka "Sammy") Koumpouras or Dimetrious
Mirtsos.

OBJECTIONS AND RESPONSE TO DOCUMENT RE UEST NO. 3:

See Objection and Response to Document Request No. 1.

DOCUMENT RE UESTN0. 4:

Produce all statements by Albert Velardi, recorded by him or any of the

individuals listed in Document Request No. 1 above, concerning his knowledge of witness

security expenditures made to or on behalf of Serafim (aka "Sammy") Koumpouras or

Dimetrious Mirtsos and any interactions he had with them before or after the trial in People v.
Petros Bedi, Ind. No. 4107/06 (Sup. Ct. Queens Cty. ).

OBJECTIONS AND RESPONSE TO DOCUMENT RE UEST NO. 4:

See Objection and Response to Document Request No. 1.

-4-
Case 1:17-cv-03827-SJ-SJB Document 89-2 Filed 10/28/19 Page 5 of 6 PageID #: 813

DOCUMENT RE UEST NO. 5:

Produce a copyof anyand all protective orders signedby the court in Peoplev.
Petros Bedi, Ind. No. 4107/06 (Sup. Ct. Queens Cty. ), allowing the names of witnesses to be

redacted or any other infonnation or documents to be withheld from the defense, and all

applications or affidavits submitted in support of the request(s) for such order or orders.

OBJECTIONS AND RESPONSE TO DOCUMENT RE UEST NO. 5:

See Objection and Response to Document Request No. 1.

DOCUMENT RE UESTN0. 6:

Produce all material witness applications, warrants, and orders served on any
witness in connection with People v. Petros Bedi, Ind. No. 4107/06 (Sup. Ct. Queens Cty. ).
OBJECTIONSAND RESPONSETO DOCUMENTRE UESTNO. 6:

See Objection and Response to Document Request No. 1.

Dated: New York, New York

October23, 2019

GEORGIAM. PESTANA
Acting Corporation Counsel of the
City ofNewYork
Attorney for Defendants
100 Church Street, Room 3-311
New York, New York 10007
(212) 356-2557
bahrenb@law.n

By:
ICHARDBA G
Assistant Corporation Counsel

-5-
Case 1:17-cv-03827-SJ-SJB Document 89-2 Filed 10/28/19 Page 6 of 6 PageID #: 814

TO: LAW OFFICES OF JOEL B. RUDIN, P. C.

Joel B. Rudin, Esq;
Attorney for Plaintiff
152 West 57th Street, 8thFloor
NewYork, NewYork 10019
(212) 752-7600
jbmdin@mdinlaw.com

-6-
 Case 1:17-cv-03827-SJ-SJB Document 89-3 Filed 10/28/19 Page 1 of 2 PageID #: 815

Haran Tae

From: Haran Tae

Sent: Friday, October 18, 2019 2:43 PM
To: Bahrenburg, Richard (Law); Joel B. Rudin
Cc: Ryan, Erin (LAW)
Subject: RE: Benitez: Fifth Request for Documents
Attachments: 2019-10-18 Bedi Email Search Parameters.docx

Hi Rich, 
 
Please find attached a document that lists the timeframe, the individuals whose inboxes we want searched, and the list 
of search terms.  
 
Thank you, 
Haran 
 
From: Bahrenburg, Richard (Law) <rbahrenb@law.nyc.gov>  
Sent: Friday, October 18, 2019 12:54 PM 
To: Joel B. Rudin <jbrudin@rudinlaw.com>; Haran Tae <HTae@rudinlaw.com> 
Cc: Ryan, Erin (LAW) <Eryan@law.nyc.gov> 
Subject: Benitez: Fifth Request for Documents  
 
Hi Joel and Haran, 
 
I am working to gather the information requested in this attached request in the event of a court order to 
produce.  Because this request is a request for ediscovery, can you please provide me with a list of search terms and 
timeframe so the ediscovery can be gathered (I see a timeframe in the request and can use that 
timeframe).  Additionally, please indicate the specific individuals whose emails must be searched (if it is the list of people 
mentioned, please specify).  It is my understanding that terms have been provided in prior requests for ediscovery.   
 
Once the terms and timeframe are provided, we can begin gathering responsive documents.    
 
Thank you.  

1
Case 1:17-cv-03827-SJ-SJB Document 89-3 Filed 10/28/19 Page 2 of 2 PageID #: 816

Search parameters for the e-mail inboxes of Richard Brown, John Ryan, Robert Masters, John
Castellano, Daniel Saunders, Brad Leventhal, Charles Testagrossa, Albert Velardi, Jennifer
Hagan, Richard Schaeffer, and Debra Pomodore, for the time period May 1, 2012 – September
30, 2013:
• Petros Bedi
• Bedi
• 4107/2006
• 4107/06
• 4107-2006
• 4107-06
• Joel Rudin
• “New York Law Journal” AND Bedi
• NYLJ AND Bedi
• “New York Times” AND Bedi
• “NY Times” AND Bedi
• Michael Powell AND Bedi
• Andrew Keshner AND Bedi
• Mirtsos OR Koumpouras
• Serafim Koumpouras
• Sammy Koumpouras
• Dimetrious Mirtsos
• Demetrious Mirtsos
• Pomodore AND Bedi
• Pomodore AND witness protection
• Pomodore AND witness security
• Pomodore AND witness relocation
• Pomodore AND witness payment
• Pomodore AND hotel AND witness
• Pomodore AND Rudin
• Pomodore AND “prosecutorial misconduct”
• Pomodore AND Brady violation
• Pomodore AND Giglio violation
• Chinese Wall
• Pomodore AND Mirtsos
• Pomodore AND Koumpouras