New York Communities for Change et al., Plaintiffs, v  County of Nassau et al., Defendants.

Disclosure - Material Exempt from Disclosure - Attorney's Work Product - Redistricting Work

Disclosure - Material Exempt from Disclosure - Legislative Privilege - Redistricting Work

Disclosure - Material Exempt from Disclosure - Privileged Material - Waiver

Troutman Pepper Hamilton Sanders LLP, New York City (Bennet J. Moskowitz of counsel), for Misha Tseytlin, nonparty.

Troutman Pepper Hamilton Sanders LLP, New York City (Sophia Nicoletta Dauria of counsel), for Sean Trende, nonparty.

Mejias Milgrim Alvarado & Lindo, P.C., Glen Cove, for plaintiffs in the first above-entitled action.

Troutman Pepper Hamilton Sanders LLP, New York City (Misha Tseytlin and Bennet J. Moskowitz of counsel), for Nassau County and another, defendants in the first above-entitled action.

Thomas A. Adams, County Attorney, Mineola (Matthew M. Rozea of counsel), for Nassau County Board of Elections and another, defendants in the first and second above-entitled actions.

Ryan E. Cronin, Garden City, for James Scheuerman, defendant in the first and second above-entitled actions.

New York Civil Liberties Union, New York City (Perry M. Grossman and Terry T. Ding of counsel), Steptoe LLP (Evan Glassman and Michael Scavelli of counsel), Law Offices of Frederick K. Brewington (Frederick Brewington of counsel), American Civil Liberties Union (Adriel I. Cepeda of counsel), LatinoJustice PRLDEF (Cesar Z. Ruiz of counsel), and Asian American Legal Defense & Education Fund (Ronak Dinesh Patel and Jerry G. Vattamala of counsel) for plaintiffs in the second above-entitled action.

Troutman Pepper Hamilton Sanders LLP, New York City (Misha Tseytlin and Bennet J. Moskowitz of counsel), for County of Nassau and others, defendants in the second above-entitled action.

The papers filed electronically on NYSCEF (New York State Courts Electronic Filing System) in New York Communities for Change v County of Nassau (index No. 602316/2024) (action 2), by (1) nonparty Misha Tseytlin, Esq. (a) to quash the nonparty subpoena duces tecum and ad testificandum, dated April 19, 2024, which was served upon him, (b) for a protective order, and (c) for such other and further relief as this court deems just and proper (mot No. 9, NY St Cts Elec Filing [NYSCEF] Doc Nos. 148-156, 158, 190-196, 198); and (2) nonparty Sean Trende (a) to quash the nonparty subpoena duces tecum and ad testificandum, dated April 26, 2024, which was served upon him, or alternatively to fix conditions, (b) for a protective order,{**86 Misc 3d at 658} and (c) for such other and further relief as this court deems just and proper (mot No. 10, NYSCEF Doc Nos. 142-147, 157, 162-180, 189), were read and considered in connection with the motions.

Upon reading the foregoing papers, it is hereby ordered that these motions are consolidated for disposition, and, because both actions 1 and 2 have been joined for discovery purposes, the following disposition applies equally to action 1, to the extent applicable.

Familiarity with these actions and the court's prior decision on the motions by nonparties, Francis X. Moroney, Chairperson of the Temporary Districting Advisory Commission (TDAC), and Richard Nicolello, then Presiding Officer of the Nassau County Legislature (Presiding Officer) during the drafting and enactment of the legislative redistricting map for the County of Nassau (County or Nassau), which became effective on February 28, 2023 (the 2023 map), is assumed. (Coads v Nassau County, 84 Misc 3d 813 [Sup Ct, Nassau County, June 7, 2024].)

Briefly, both actions challenge the 2023 map on different grounds. Plaintiffs in action 1 (Coads plaintiffs) challenge the 2023 map, inter alia, as allegedly favoring the Republican Party and disfavoring the Democratic Party, thereby constituting partisan gerrymandering in violation of section 34 of the New York State Municipal Home Rule Law. Plaintiffs in action 2 (NYCC plaintiffs) allege that the 2023 map was drawn with the intent to dilute the votes of Black, Latino, and Asian voters within the County, thereby constituting racial gerrymandering in violation of the John R. Lewis Voting Rights Act of New York (NYVRA), codified under New York Election Law § 17-206, and section 34 of the Municipal Home Rule Law.

During the legislative redistricting process at issue in these actions, Mr. Nicolello, acting in his capacity as Presiding Officer, rejected the two maps which were presented to him by the Chairperson of the TDAC. The TDAC was created by the Nassau County Legislature (Legislature) to "recommend one or more plans to the county Legislature for dividing the county into legislative districts for the election of county legislators." (Nassau County Charter § 113 [2].) The TDAC was comprised of a non-voting Chairperson and 10 Commissioners, five of whom were appointed by the Presiding Officer and the other five of whom were appointed by the Minority Leader. One of{**86 Misc 3d at 659} the two proposed maps was drawn by the Republican TDAC Commissioners (appointed by Mr. Nicolello), and the other map was drawn by the Democratic TDAC Commissioners (appointed by the Minority Leader). Neither map was formally submitted by the TDAC, as it is required to "take all action by not less than six affirmative votes of its members," which was not obtained. (Id. § 113 [3].)

Mr. Nicolello hired the law firm Troutman Pepper Hamilton Sanders LLP (Troutman Pepper) in November 2022, to help him draw a new map which complied with all applicable legal requirements. Nonparty Misha Tseytlin, Esq.^[FN1] of Troutman Pepper played a key role, working closely with a redistricting expert, Dr. Sean Trende,^[FN2] and another individual whose identity has not been disclosed, to redraw the legislative map for the County. The redrawn map was released to the public on February 9, 2023, after which the Legislature held a public hearing on February 16, 2023. Mr. Tseytlin testified at the public hearing about the proposed redistricting map, explaining how the redrawn map complied with applicable constitutional and statutory law. Troutman Pepper published two memoranda to provide the Legislature and the public with the factual and legal bases for the proposed maps. Mr. Tseytlin testified that "Troutman Pepper working with the Presiding Officer, put together the map." (NYSCEF Doc No. 164, [*3]Feb. 16, 2023 legislative hearing tr at 36, lines 4-6.)

After receiving feedback from the other legislators and the public, Mr. Nicolello made several revisions to the map. On February 27, 2023, the Legislature adopted the final iteration of the map through Local Law No. 1-2023 of the County of Nassau, which was signed into law on February 28, 2023. Certain legislators contested the validity of the 2023 map, and threatened litigation to challenge it. These actions by non-legislators followed, in which discovery is ongoing, including these motions by nonparties to quash subpoenas issued to them to compel disclosure, as well as disputes amongst the parties being presented by letter briefs.^[FN3]

{**86 Misc 3d at 660}In action 2, the NYCC plaintiffs issued a subpoena duces tecum and ad testificandum, dated April 19, 2024, commanding nonparty Misha Tseytlin to produce documents in his personal possession, custody, or control and give testimony in connection with the action (Tseytlin subpoena or subpoena). The subpoena stated that

"[d]isclosure is being sought from you because, given your involvement in the Nassau County legislative redistricting process—including, without limitation, your February 16, 2023 testimony before the Nassau County Legislature and related memoranda authored in part by you in the legislative record for the redistricting plan passed by the Nassau County Legislature on February 27, 2023—you may have in your personal possession documents which are material and necessary to the resolution of Plaintiffs' Claims (the 'Claims'), as set forth in the Complaint." (NYSCEF Doc No. 150, Tseytlin subpoena at 2.)

Attached to the Tseytlin subpoena was a schedule of documents to be produced:

"1. All documents and communications concerning Your February 16, 2023 testimony before the Nassau County Legislature, including any documents You referenced during, relied upon in preparation for or during, or reviewed in preparation for Your February 16, 2023 testimony before the Nassau County Legislature or other documents related to that testimony. The relevant time period for this request is November 1, 2022 through February 28, 2023.

"2. All documents and communications referenced in or relied upon by the Troutman Memos. The relevant time period for this request is November 1, 2022 through February 28, 2023.

"3. All documents and communications concerning or reflecting the extent to which You or any member of Troutman, or agent, consultant, or contractor of Troutman, 'drew the map' with respect to any redistricting proposal during the Redistricting Process, including the Redistricting Plan. See Tr. of Feb. 16, 2023 Hearing of the Nassau County{**86 Misc 3d at 661} Legislature at 45:10-12 ('MR. TSEYTLIN: My law firm drew the map with consultation of the Presiding Officer.'); see also id. at 112:18-24 ('LEGISLATOR SOLAGES: You know, again, there was a lot of discussion as to who drew the map. Are there any other persons who are responsible for drawing the map who are here tonight? MR. TSEYTLIN: Nobody from my law firm is here no. Just me.')." (NYSCEF Doc No. 150, Tseytlin subpoena, [*4]exhibit A at 4-5.)

The NYCC plaintiffs issued a foreign subpoena duces tecum and ad testificandum, dated April 26, 2024 (Trende subpoena or subpoena), commanding nonparty Sean Trende to produce documents in his personal possession, custody, or control and give testimony in connection with the action. The subpoena stated that

"[d]isclosure is being sought from you because, given your role as a consultant for the Nassau County Legislature in connection with the Nassau County legislative redistricting process, you may have in your personal possession documents which are material and necessary to the resolution of Plaintiffs' Claims (the 'Claims'), as set forth in the Complaint." (NYSCEF Doc No. 144, Trende subpoena.)

Mr. Tseytlin and Dr. Trende served responses and objections to the subpoenas. Concurrently therewith, Troutman Pepper filed separate motions in action 2 on behalf of Mr. Tseytlin and Dr. Trende seeking to quash the subpoenas and to obtain protective orders. The motion on behalf of Dr. Trende seeks to quash the subpoena against him only to the extent that it demands his appearance for a deposition, or alternatively to fix conditions. Dr. Trende does not seek to quash the demands for documents in his subpoena. (NYSCEF Doc No. 147, mem of law in support of nonparty Sean Trende's mot to quash at 1 n 1.) Both movants also request such other and further relief as this court deems just and proper.

By letter dated May 10, 2024, defendants joined in both motions. (NYSCEF Doc Nos. 157 [mot No. 9], 158 [mot No. 10].)

Standard of Review

The court has the discretion pursuant to CPLR 2304 to quash an improper subpoena, fix conditions, or modify its scope. Further,{**86 Misc 3d at 662} pursuant to the provisions of CPLR 3103 (a), the court may issue a protective order denying, limiting, conditioning or regulating the use of any disclosure device in order to prevent "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person." A motion to quash a subpoena must be granted when the movant establishes that the discovery sought is "utterly irrelevant" to the action or that the "futility of the process to uncover anything legitimate is inevitable or obvious." (Matter of Kapon v Koch, 23 NY3d 32, 38-39 [2014] [citation omitted].)

"The party seeking a protective order bears the burden of showing that such relief is warranted." (Board of Mgrs. of Fishkill Woods Condominium v Gottlieb, 184 AD3d 792, 794 [2d Dept 2020], citing Nimkoff v Central Park Plaza Assoc., LLC, 123 AD3d 679, 680-681 [2d Dept 2014], and Ren Zheng Zheng v Bermeo, 114 AD3d 743, 744 [2d Dept 2014].) "When the individual seeking a protective order asserts attorney work product and/or privilege, 'the burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity.' " (Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 403-404 [1st Dept 2018], quoting Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991].)

"[T]he trial court is invested with broad discretion to supervise discovery and to determine what is 'material and necessary' as that phrase is used in CPLR 3101 (a)." (Auerbach v Klein, 30 AD3d 451, 452 [2d Dept 2006] [citation omitted]; Tower Ins. Co. of N.Y. v Murello, 68 AD3d 977, 977 [2d Dept 2009] ["unlimited disclosure is not permitted" and a court should exercise [*5]its discretion to issue a protective order when a discovery demand seeks "privileged or irrelevant material"].)

The movants do not assert that the discovery sought by plaintiffs is utterly irrelevant or unlikely to uncover anything legitimate. Instead, the movants assert that disclosure is barred by various evidentiary privileges.

Misha Tseytlin, Esq.'s Motion to Quash

Nonparty Misha Tseytlin, Esq. moves to quash the subpoena seeking documents in his possession and to compel his deposition, asserting that, as defendants' lead counsel of record, it is "wildly inappropriate" for him to be deposed in the absence of extraordinary circumstances, none of which is present here. (Tseytlin mem of law at 6, citingRui Ma v Guo Wengui, 2023{**86 Misc 3d at 663} NY Slip Op 34061[U], *3 [Sup Ct, NY County, Nov. 16, 2023, index No. 158140/2017].) Mr. Tseytlin further contends that there is no good-faith basis for his deposition, because the materials and the testimony plaintiffs seek is readily available from other non-attorney sources. Mr. Tseytlin asserts that plaintiffs already have obtained "non-privileged documents and other information from other sources, including from Defendants' productions, which contained certain of Mr. Tseytlin's non-privileged emails that were related to the public dissemination of various maps and legal memoranda explaining those maps' legality." (Id.) Mr. Tseytlin argues that the subpoena is " 'offensive to our conception of the adversarial process' and can lead to 'mischief' such that additional burdens apply to the parties issuing them." (Id., quoting Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 405-406 [1st Dept 2018] [citation omitted].) He asserts that plaintiffs have not met their heightened burden. He further contends that he may not be deposed because his testimony is protected by attorney-client privilege, and that any documents or information are "obviously privileged."

Moreover, Mr. Tseytlin seeks the protection of the legislative privilege, contending that the work he performed in connection with the 2023 map was "made within the 'sphere of legitimate legislative activity,' to allow the Presiding Officer to engage in the legislative activity of redistricting." (NYSCEF Doc No. 156, Tseytlin mem of law at 15.) Mr. Tseytlin concludes with the assertion that "[p]roviding documents and testimony on these subjects would jeopardize the sanctity of the legislative process, and potentially restrain the willingness of Legislators to engage in critical open dialogue while evaluating potential legislation through their retained counsel and experts." (Id. at 15-16.) Accordingly, Mr. Tseytlin requests that the court quash the subpoena and issue a protective order.

Attorney-Client Privilege and Work Product Doctrine

"The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship." (Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 623 [2016], citing CPLR 4503 [a] [1].) Moreover, "[t]he communication itself must be primarily or predominantly of a legal character." (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377-378 [1991], citing Rossi v Blue Cross & Blue Shield of Greater N.Y., 73 NY2d 588, 594 [1989].){**86 Misc 3d at 664}

"The party asserting the privilege bears the burden of establishing its entitlement to protection by showing that the communication at issue was between an attorney and a client 'for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship,' that the communication is predominantly of a legal character, that the communication was confidential and that the privilege was not waived." (Ambac Assur. Corp. at 623-624, citing Rossi at 593-594.)

Because the privilege is in "[o]bvious [*6]tension" with New York's liberal discovery rules and it "shields from disclosure pertinent information and therefore 'constitutes an "obstacle" to the truth-finding process,' " the Court of Appeals holds that the privilege "must be narrowly construed." (Ambac at 624, citing Matter of Jacqueline F., 47 NY2d 215, 219 [1979], and Spectrum at 377.)

Mr. Tseytlin asserts that New York courts impose a heightened burden on a party who seeks to depose counsel for their adversary to not only show that the information sought is material and necessary; they must demonstrate a "good faith basis." (Tseytlin mem of law at 9, citing Byoung Sool Kim v Cho Ho Bae, 198 AD2d 206, 207 [2d Dept 1993], and Frybergh v Kouffman, 119 AD2d 541, 541 [2d Dept 1986].) Mr. Tseytlin states that the Appellate Division, First Department, imposes a further requirement to demonstrate "that the deposition is necessary because the information is not available from another source." (Id. at 9, quoting Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 406 [1st Dept 2018].) That further requirement, Mr. Tseytlin contends, has been adopted by courts in the Second Department as a means of demonstrating good faith. (Id. at 9-10, citing Ajax Mtge. Loan Trust 2019-C v Seneca Mgt. Corp., 2022 NY Slip Op 34955[U], *3 [Sup Ct, Queens County, Nov. 22, 2022, index No. 723696/2021] ["Defendant . . . , however, failed to demonstrate a good faith basis in seeking to subpoena attorney Bergman, particularly since this information was not in the exclusive control of attorney Bergman"], citing Liberty Petroleum, 164 AD3d at 406.)^[FN4]

{**86 Misc 3d at 665}Mr. Tseytlin contends that plaintiffs cannot meet the heightened burden that is required of them, because the materials and testimony which they seek to obtain from him have been, or will be, produced by other sources, including defendants and their expert witness, Dr. Trende. Mr. Tseytlin asserts that the circumstances "negat[e] the need for this incursion into attorney-client privilege." (Id. at 10, citing Liberty Petroleum at 406, and Rui Ma v Guo Wengui, 2023 NY Slip Op 34061[U], *2 [Sup Ct, NY County, Nov. 16, 2023, index No. 158140/2017].) Mr. Tseytlin argues that plaintiffs' attempt to depose him "simply has no 'good faith basis,' and any value to the information that might arise out of such deposition—whatever that might be—is simply not 'worth the substantial costs associated with' deposing opposing counsel." (Id. at 10, quoting Liberty Petroleum at 407.)

Plaintiffs oppose Mr. Tseytlin's motion on the ground that Mr. Tseytlin has unique, personal, and non-privileged knowledge about key facts in this case, and defendants have resisted plaintiffs' diligent efforts to obtain the factual information in Mr. Tseytlin's possession through other means. Plaintiffs argue that "Defendants' decision to retain [Mr. Tseytlin] as counsel in this litigation after involving him directly in the redistricting process does not insulate him from disclosure." (NYSCEF Doc No. 190, plaintiffs' opp at 1.) Plaintiffs assert that they do not intend to request that Mr. Tseytlin be disqualified from continuing to represent defendants in this case, or to question him on any events which occurred after the redistricting process ended in February 2023. (Id.)

Plaintiffs argue that neither the attorney-client nor work product privilege shields [*7]documents in Mr. Tseytlin's possession or his testimony about his work during the redistricting process, because it was not predominantly legal in nature. Plaintiffs assert that Mr. Tseytlin's "work consist[ed] of mapmaking, statistical analyses, and public advocacy for Mr. Nicolello's maps, [which] did not require the unique skills of an attorney." (Id. at 2.) Plaintiffs characterize "Mr. Tseytlin [as] the face of Mr. Nicolello's efforts to persuade the public and the Legislature that his map should be adopted." (Id.)

Mr. Tseytlin rejects plaintiffs' contention "that the attorney-client privilege and work product doctrine do not apply here because Troutman Pepper was acting as a 'map-drawer' rather than as counsel providing confidential legal advice." (NYSCEF Doc No. 156, Tseytlin mem of law at 13.) Mr. Tseytlin states{**86 Misc 3d at 666} unequivocally that he "did not draw any maps, and, instead, provided the Presiding Officer standard legal advice during the map-drawing process." (Id.) Mr. Tseytlin asserts that he provided legal services to the Presiding Officer, which allowed him to "decid[e] how best to order [the Legislature's] affairs in compliance with legal mandates, including what action, if any to take in order to avoid litigation," while also "[e]ncouraging proactive compliance with the law." (Id., quoting Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision, 40 NY3d 547, 553 [2023].)

Mr. Tseytlin states that "the record establishes that [his] work on the redistricting [map] was in his capacity as an attorney, advising on the legal requirements for any adopted map, as well as advising in advance of guaranteed litigation over the map." (Id. at 12.) These actions, Mr. Tseytlin asserts, "are core attorney actions for which attorney-client privilege [and the work product doctrine] appl[y]." (Id., citing Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision, 40 NY3d 547, 553 [2023].)

Unquestionably, the Troutman memoranda evidence that Mr. Tseytlin provided legal advice to Mr. Nicolello about the proposed redistricting maps. Contrary to Mr. Tseytlin's assertion in his motion papers that he did not draw the maps, his testimony at the February 16, 2023 hearing indicates that he and Mr. Nicolello created the maps that were submitted to the Legislature. When Legislator Abrahams asked Mr. Tseytlin during the February 16, 2023 public hearing who drew the map that was proposed to the Legislature, whether it was drawn by Dr. Trende or Mr. Tseytlin, Mr. Tseytlin testified that "Troutman Pepper working with the Presiding Officer, put together the map." (NYSCEF Doc No. 164, Feb. 16, 2023 legislative hearing tr at 36, lines 4-6.) Legislator Abrahams posed the same question to Mr. Tseytlin several times and got the same or similar response. Mr. Tseytlin did not further clarify his role in drawing the proposed map at the hearing. To the extent that Mr. Tseytlin was involved in drawing the proposed maps, he cannot claim privilege for such non-legal work.

As the court held in its prior decision on nonparty Richard Nicolello's motion to quash based upon attorney-client privilege, the attorney-client privilege does not provide a blanket prohibition against deposition testimony. "[T]he long established rule is that privilege may not be used as a ground to{**86 Misc 3d at 667} quash a subpoena ad testificandum in advance of compliance. Simply stated, privileges may not be asserted in advance of questions actually propounded." (New York State Commn. on Govt. Integrity v Congel, 156 AD2d 274, 280 [1st Dept 1989], citing 2A Weinstein, Korn & Miller, New York Civil Practice: CPLR ¶ 2304.13; see also e.g. Matter of Pennock v Lane, 18 AD2d 1043 [3d Dept 1963]; People v Slochowsky, 116 Misc 2d 1069 [Sup Ct, Kings County 1982].) "Where, as here, a witness has been served with a subpoena ad testificandum, 'a claim of privilege cannot be asserted until the witness appears . . . and is presented with a question that implicates protected information.' " (Matter of Empire Wine & Spirits LLC v Colon, 145 AD3d 1157, 1158-1159 [3d Dept 2016], citing Matter of Holmes v Winter, 22 NY3d 300, 319 [2013], cert [*8]denied 572 US 1135 [2014]; see Matter of Beach v Shanley, 62 NY2d 241, 248 [1984]; 4 Weinstein, Korn & Miller, New York Civil Practice: CPLR ¶ 2304.13.) "The proper procedure requires that the subpoena be obeyed and objections to specific questions interposed. If the objections cannot be resolved informally, appropriate review can be sought on a record that permits an informed determination of the issues." (Matter of Seelig v Shepard, 152 Misc 2d 699, 703 [Sup Ct, NY County 1991].)

Sean Trende's Motion to Quash

Dr. Trende moves to quash the subpoena issued to him only to the extent that he seeks a protective order to preclude his deposition testimony. (NYSCEF Doc No. 147, mem of law in support of nonparty Sean Trende's mot at 1 n 1.) Dr. Trende asserts that his deposition should be precluded because he was integral to Troutman Pepper's provision of legal advice to the Presiding Officer; therefore, his communications with Troutman Pepper, and the work he performed, are protected under the attorney-client privilege and work product doctrine. Dr. Trende asserts that the attorney-client privilege and work product doctrine extend to materials produced by consultants and experts who are retained by attorneys, because "an expert who is retained as a consultant to assist in analyzing or preparing the case . . . [is] generally seen as an adjunct to the lawyer's strategic thought processes, thus qualifying for complete exemption from disclosure under [CPLR 3101] subdivision (c)." (Santariga v McCann, 161 AD2d 320, 321 [1st Dept 1990] [internal quotation marks omitted].) Dr. Trende also claims the protection of the common-law legislative privilege based upon his redistricting activities, which he asserts are inherently legislative activity.{**86 Misc 3d at 668}

In addition to the foregoing, Dr. Trende argues that plaintiffs should not be allowed to depose him as a fact witness in advance of his expert witness deposition because that would allow them unprecedented access to his methodologies in advance of expert discovery.^[FN5]

If the court declines to issue a protective order to preclude his deposition, Dr. Trende requests, in the alternative, that the court fix conditions on his deposition. He requests that his deposition should be limited to the social science analyses he performed with respect to the maps publicly disclosed at the legislative hearing on February 16, 2023, and the analysis mirrored in the memoranda presented at the hearing by Troutman Pepper.

Plaintiffs contend that Dr. Trende's arguments "hinge on the claim that his exclusive role in the mapmaking process was that of a 'litigation consultant.' " (NYSCEF Doc No. 162, opp at 8.) Plaintiffs assert that Dr. Trende cannot claim the protection of the attorney-client and work product privileges in this way because he did not serve exclusively as a litigation consultant to Troutman Pepper. Moreover, plaintiffs assert that Dr. Trende's social science analyses and mapmaking work were not predominantly legal, or uniquely the product of a lawyer's learning and skill. Plaintiffs distinguish Dr. Trende's work, analyses and data tabulations from the type of documents found to be protected in Matter of Appellate Advocates v New York State Dept. of Corr. & Community Supervision (40 NY3d 547 [2023]). The attorney-client privilege as applied in Appellate Advocates protected documents sought pursuant to a FOIL request, because they

"reflect[ed] counsel's legal analysis of statutory, regulatory and decisional law and they therefore constitute[d] attorney-client communications that were prepared 'for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship,' specifically, [*9]to provide guidance on matters relevant to the commissioners' exercise of their discretionary authority." (Id. at 550-551, quoting Rossi v Blue Cross & Blue Shield of Greater N.Y., 73 NY2d 588, 593 [1989].)

Dr. Trende's testimony about his redistricting work for Troutman Pepper is not covered by the attorney-client privilege or{**86 Misc 3d at 669} work product doctrine. While Dr. Trende's work may have been instrumental to Troutman Pepper in advising the Presiding Officer about the legality of the proposed maps, Dr. Trende's analysis was not "of a legal character." (NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 155 AD3d 1208, 1210 [3d Dept 2017], citing Ambac Assur. Corp., 27 NY3d at 624.) Dr. Trende's analysis was not prepared solely for litigation purposes or in conjunction with a pending lawsuit.^[FN6] Nor was Dr. Trende's social science analysis and map drawing rendered solely to facilitate the rendition of legal advice or services, as Mr. Tseytlin now claims. The primary purpose of Trende's analysis was to draw a redistricting map that could be utilized to determine the legislative districts for the then upcoming election. Mr. Tseytlin's claim that Dr. Trende was retained as a litigation consultant is not supported by the record. When Dr. Trende was retained, litigation was far from a certainty; it was only a remote possibility, if at all. As the Appellate Division stated in Matter of Empire Ch. of the Associated Bldrs. & Contrs., Inc. v New York State Dept. of Transp. (211 AD3d 1155, 1158 [3d Dept 2022]), "[t]he specter of a possible lawsuit is insufficient to invoke the privilege." Consequently, Dr. Trende's redistricting work, unless precluded by legislative privilege, may be explored by plaintiffs during deposition.

Legislative Privilege

Mr. Tseytlin contends that his and Dr. Trende's work assisting the Presiding Officer with developing the redistricting maps is protected from disclosure by the legislative privilege. (NYSCEF Doc No. 156 at 15, citing Matter of Straniere v Silver, 218 AD2d 80, 83 [3d Dept 1996].) Mr. Tseytlin asserts that the related information and materials created by Troutman Pepper were made within the "sphere of legitimate legislative activity," meaning those acts that are "an integral part of the deliberative and communicative processes by which [legislators] participate in . . . proceedings with respect to the consideration and passage or rejection of proposed legislation," including their underlying motivations. (Id., citing Larabee v Governor of State of N.Y., 65 AD3d 74, 89 [1st Dept 2009], mod 14 NY3d 230 [2010].) Such activity, Mr. Tseytlin asserts, should not be subject to disclosure, pursuant to the legislative privilege,{**86 Misc 3d at 670} because "[p]roviding documents and testimony on these subjects would jeopardize the sanctity of the legislative process, and potentially restrain the willingness of Legislators to engage in critical open dialogue while evaluating potential legislation through their retained counsel and experts." (Id. at 15-16.)

Plaintiffs, again claiming that the common-law legislative privilege, as applied in this action, is qualified, argue that the privilege is weakest when invoked by persons who do not face individual liability. Plaintiffs contend that the privilege must yield in the face of evidence which shows that the 2023 map was created with intent to discriminate against voters of color and to entrench a Republican majority in the Legislature. Plaintiffs also claim that "cherished public rights are at stake" and the interests to be furthered by disclosure outweigh the interests in withholding disclosure of information that is relevant to the claims made in these actions.

Mr. Tseytlin cites cases which involve legislative immunity, not legislative privilege: Larabee v Governor of State of N.Y. (65 AD3d 74), Matter of Straniere v Silver (218 AD2d 80), and Felder v Foster (71 AD2d 71 [4th Dept 1979]). Larabee considered whether the State Legislature was immune from a suit which challenged the Legislature's failure to increase judicial salaries because of a political conflict with the Governor. In Straniere, the Appellate Division held that a state legislator and home rule counsel were entitled to immunity under the Speech or Debate Clause because the determination whether a home rule message was required to introduce legislation constituted legislative activity. Felder involved claims brought under 42 USC § 1983, the New York Social Services Law, and the Equal Protection Clauses of the New York and United States Constitutions against county legislators, the County Manager and the County Director of Social Services. The Appellate Division held that the defendants were not entitled to immunity, absolute or qualified, from injunctive or declaratory relief; however, the county legislators were entitled to absolute immunity from damages under section 1983 for actions taken in their legislative capacities. Moreover, these cases are distinguishable on the additional ground that they involved legislators, not a consultant retained by them.

The case law in New York state courts surrounding legislative privilege is scant. The only reported state court decisions on the issue, Humane Socy. of N.Y. v City of New York (188{**86 Misc 3d at 671} Misc 2d 735 [Sup Ct, NY County 2001]) and Campaign for Fiscal Equity v State of New York (179 Misc 2d 907 [Sup Ct, NY County 1999], affd 265 AD2d 277 [1st Dept 1999]), applied the common-law legislative privilege to executive branch employees performing work which those courts deemed to be legislative activity. In Campaign for Fiscal Equity, the court stated that "[a]n aide may assert the privilege on behalf of a State official acting in a legislative capacity." (179 Misc 2d at 913, citing Dombrowski v Eastland, 387 US 82, 85 [1967].) The court continued, stating that "this derivative immunity is described as 'less absolute' than the [state] official's." (Id.) In that case, the court afforded the aide the same degree of protection because the plaintiffs did not provide any reasons why the aide should be given less protection than the officials on whose behalf she acted. These decisions are in line with federal courts which have addressed the issue in the same or similar context.

The United States Supreme Court long ago recognized that legislative privilege should extend to a legislator's aides and assistants, because the modern legislative process is so complex that it is impossible for legislators to conduct legislative activity without assistance. (Gravel v United States, 408 US 606, 616 [1972].)

In ACORN v County of Nassau (2009 WL 2923435, *6, 2009 US Dist LEXIS 82405, *24 [ED NY, Sept. 10, 2009, No. 05-CV-2301]), the court held that

"[l]egislators must be permitted to have discussions and obtain recommendations from experts retained by them to assist in their legislative functions, without vitiating or waiving legislative privilege. To hold otherwise under the particular circumstances of this case would impair the legislative function by requiring them to exclude their own retained experts from the critical legislative conversations about the precise issues the experts were hired to address." (Id.; cf. Committee for a Fair & Balanced Map v Illinois State Bd. of Elections, 2011 WL 4837508, *10, 2011 US Dist LEXIS 117656, *35 [ND Ill, Oct. 12, 2011, No. 11 C 5065] [legislative privilege did not apply to "experts and/or consultants retained or utilized by (legislators) to assist in the redistricting process"].)

In Favors v Cuomo (285 FRD 187 [ED NY 2012]), the court stated that "in this Circuit communications between legislators and 'experts retained by them to assist in their legislative{**86 Misc 3d at 672} [*11]functions' are subject to the qualified privilege." (Favors at 212, citing ACORN, 2009 WL 2923435, *6, 2009 US Dist LEXIS 82405, *21-26, citing Almonte v City of Long Beach, 478 F3d 100, 107 [2d Cir 2007].)

As recently explained by the Fifth Circuit in La Union del Pueblo Entero v Abbott (93 F4th 310, 321-322 [5th Cir 2024]):

"neither aides nor assistants independently possess a claim to the legislative privilege. Their ability to invoke the privilege comes not from their positions as 'aides' or 'assistants.' Instead, it depends on whether the act for which they invoke privilege was done at the direction of, instruction of, or for a legislator. Aides and assistants can invoke privilege only over acts meeting that conditional, for those acts occur within the legislative process and 'would be immune legislative conduct if performed by the [legislator] himself.' " (Quoting Gravel at 622.)

The court in La Union del Pueblo Entero, seeing no principled difference between a legislator's aides and assistants and third parties, held that "when a legislator brings third parties into the legislative process, those third parties may invoke the privilege on that legislator's behalf for acts done at the direction of, instruction of, or for the legislator." (Id. at 322.)

This court agrees that legislative privilege should be extended to consultants and experts who are retained by a legislator to assist in their legislative functions. Therefore, Mr. Tseytlin and Dr. Trende are entitled to common-law legislative privilege in connection with the legislative activity they performed at the behest of, and for, Mr. Nicolello, subject to any waiver of the privilege.

Waiver of Privileges

Movants acknowledge that the attorney-client privilege, work product doctrine, and legislative privilege can be waived "if the communication or the underlying factual information is publicly disclosed or made to third parties." They assert, however, that if such waiver occurred, it is limited to "the extent that [the public disclosure] parrots the analysis set forth in the report." (NYSCEF Doc No. 156 at 11, quoting Matter of Empire Ch. of the Associated Bldrs. & Contrs., Inc. v New York State Dept. of Transp., 211 AD3d 1155, 1158 [3d Dept 2022], and Matter of Loudon House LLC v Town of Colonie, 123 AD3d 1409, 1411 [3d Dept 2014].)

Mr. Tseytlin states that the underlying data and analyses Dr. Trende conducted of the three publicly disclosed maps presented{**86 Misc 3d at 673} to the Legislature by the Presiding Officer, Dr. Trende's "communications conveying his analyses of the maps discussed in the Troutman Pepper memoranda, and all relevant legal analyses by Troutman Pepper have already been disclosed to Plaintiffs to the extent that any such otherwise privileged materials 'parrot[ ] the analysis' set forth in the memoranda." (Id. at 13, citing Loudon House, 123 AD3d at 1411.) While he does not concede waiver, Mr. Tseytlin asserts that plaintiffs have obtained all the material they could claim resulted from a waiver. (Id. at 14, citing Empire Ch., 211 AD3d at 1158.)

Plaintiffs argue that the privileges were waived by Mr. Tseytlin's statements at the Legislature's February 16, 2023 public hearing and through the Troutman Pepper memoranda which were disclosed at the legislative hearings. Plaintiffs contend that privileges cannot be asserted as both sword and shield, as Mr. Tseytlin has chosen to do by seeking to justify the 2023 map "through largely self-serving testimony and memoranda while withholding their complete analyses." (NYSCEF Doc No. 190 at 2.)

Examination of the two decisions relied upon by Mr. Tseytlin, Matter of Empire Ch. of the Associated Bldrs. & Contrs., Inc. v New York State Dept. of Transp. and Matter of Loudon House [*12]LLC v Town of Colonie, shows that they do not support movants' position on waiver. Both Empire Ch. and Loudon House involved CPLR article 78 proceedings seeking to annul the denial of a petitioner's Freedom of Information Law (FOIL) request by government agencies. One of the issues in both cases was whether the respondent agency had waived the attorney-client privilege it asserted under FOIL (see Public Officers Law § 87 [2] [a]),^[FN7] which would have otherwise precluded disclosure of the study and report, respectively in each case, sought by the petitioners. The petitioners in each case asserted{**86 Misc 3d at 674} that the subject agency had effectuated a waiver by its prior public disclosure of the information contained in the respective documents, thereby entitling them to obtain the documents in their entirety.

In Empire Ch., the appeal was from the trial court's grant of a petition brought pursuant to CPLR article 78, seeking to annul the respondent's denial of the petitioner's Freedom of Information Law request. The petitioner sought to obtain a labor and cost analysis study which was prepared by a consultant to assist the Commissioner of the New York State Department of Transportation in determining whether the use of a project labor agreement was appropriate in connection with a bridge project. The trial court conducted an in camera review of the study and determined that the FOIL exemptions,^[FN8] including attorney-client privilege, that were claimed by the Commissioner in withholding the study did not apply to bar its disclosure.

The Appellate Division in Empire Ch. stated that the attorney-client privilege protects " 'communications between attorneys and their clients exchanged in the course of obtaining legal advice or services.' " (Empire Ch., 211 AD3d at 1158, citing Matter of Gartner v New York State Attorney General's Off., 160 AD3d 1087, 1091 [3d Dept 2018]; see CPLR 4503 [a].) The Appellate Division made clear that the privilege is "limited to those materials which are uniquely the product of a lawyer's learning and professional skills, such as materials which reflect his or her legal research, analysis, conclusions, legal theory or strategy." (Id., citing Matter of Gartner v New York State Attorney General's Off., 160 AD3d at 1091-1092.) The Appellate Court determined that "the study [was] not a communication that includes legal advice or reflects client confidences . . . [n]or [was] the study's primary purpose to facilitate the rendition of legal advice or services." (Id.) The Court stated that the primary purpose of the study was to determine whether it was feasible to utilize a project labor agreement for the bridge project. The Court found that the study "was [*13]certainly not prepared solely for litigation purposes or in conjunction with a pending lawsuit." (Id., citing NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 155 AD3d 1208, 1210 [3d Dept 2017].){**86 Misc 3d at 675} Importantly, the Appellate Court asserted that "[t]he specter of a possible lawsuit is insufficient to invoke the privilege." (Id.) Finally, the Court held that "the attorney-client privilege is waived if the communication or the underlying factual information is publicly disclosed or made to third parties." (Id., citing Matter of Gartner v New York State Attorney General's Off., 160 AD3d at 1092, Matter of Loudon House LLC v Town of Colonie, 123 AD3d 1409, 1411 [3d Dept 2014], and Matter of Morgan v New York State Dept. of Envtl. Conservation, 9 AD3d 586, 588 [3d Dept 2004].) Because the Commissioner had issued a "project labor agreement record review and determination" for the bridge project, which referenced the study and cited specifically to numerous findings in the study to justify her final decision to include a project labor agreement in the project, the Court held that she had "waived the privilege with respect to this information." (Id.) Consequently, the Commissioner had to disclose the study to the petitioner.

In Loudon, which was cited in Empire Ch., the Appellate Division, Third Department addressed the same FOIL exemption eight years earlier. In that case, a town board denied the petitioners' FOIL request, asserting that attorney-client privilege prevented disclosure of a report prepared by outside counsel it had retained to investigate its legal options in connection with a condominium development it sought to have built in the town, which had stalled because of financial issues. The "outside counsel appeared at a June 2012 public meeting and made an extensive oral presentation—apparently at the Town Board's behest—in which counsel set forth his legal analysis of the zoning issues involved." (123 AD3d at 1411.) It was in that context that the Appellate Division determined that "[t]o the extent that the oral presentation parrots the analysis set forth in the report, it may well constitute a waiver of the privilege protecting the contents of the report." (Id., citing In re Horowitz, 482 F2d 72, 81 [2d Cir 1973], cert denied 414 US 867 [1973], and 1 McCormick on Evidence § 93 [7th ed 2013].) The Appellate Division further stated that "[w]hether and how much the report and oral presentation overlap are open questions, however, because the report was not examined by Supreme Court in camera and [was] not in the record before [the court]." (Id.) Because " '[d]etermining document immunity claims, and reviewing them, are largely fact-specific processes' requiring an in camera review," the Appellate Division remitted the matter to the Supreme Court to "inspect the report in {**86 Misc 3d at 676}camera and render a proper determination on the waiver issue." (Id. at 1412, citing Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 133 [1985], and Matter of MacKenzie v Seiden, 106 AD3d 1140, 1143 [3d Dept 2013]; compare Matter of Madera v Elmont Pub. Lib., 101 AD3d 726, 729 [2d Dept 2012].) Nonetheless, the Appellate Court stated that "[a] client who voluntarily testifies to a privileged matter, who publicly discloses such matter or who permits his [or her] attorney to testify regarding the matter is deemed to have impliedly waived the attorney-client privilege." (123 AD3d at 1411, citing Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834, 835 [2d Dept 1983], and Jones v Gelles, 167 AD2d 636, 639 [3d Dept 1990], lv denied 77 NY2d 806 [1991].) Moreover, the burden was on the respondents to establish "that the privilege had not been waived and that the report remained exempt from disclosure." (Id., citing Matter of Madera v Elmont Pub. Lib., 101 AD3d 726, 728-729 [2d Dept 2012], and Matter of Morgan v New York State Dept. of Envtl. Conservation, 9 AD3d at 588; see also Parnes v Parnes, 80 AD3d 948, 950 [3d Dept 2011].)

Movants misread Empire Ch. and Loudon. Neither case supports their contention that plaintiffs are restricted to obtaining only the information that was already disclosed at the public hearings and in Troutman Pepper's legal memoranda. Loudon remitted the issue of waiver [*14]to the trial court to determine whether the oral presentation of the counsel's report waived the attorney-client privilege and required disclosure of the report. Empire Ch. actually supports the inverse proposition to the one which movants advance here. The Appellate Court held that the Commissioner's disclosure of the findings from the study to support her final decision waived the privilege and entitled the petitioner to the remainder of the study. In other words, the more limited oral presentation provided enough information from the study to waive the privilege and require that the entire study be turned over.

Applying the rationale from Empire Ch. to the instant circumstances results in a determination that, like the Commissioner, the Presiding Officer waived any applicable privileges as to the analyses and work performed by Dr. Trende and Mr. Tseytlin on the redistricting maps by allowing the public disclosure of significant portions of those analyses to be made during the legislative hearing on February 16, 2023. Movants cannot determine that plaintiffs are limited to Troutman Pepper's selective disclosure and can probe no further.{**86 Misc 3d at 677}

Consequently, plaintiffs are entitled to depose Dr. Trende about the social science analyses he performed, and they may inquire into and explore them further, but they may not inquire into his expert opinions. Plaintiffs are entitled to depose Mr. Tseytlin and probe further into the information he disclosed during the public hearing, for which all otherwise applicable privileges have been waived. As the court held in relation to Mr. Nicolello, Mr. Tseytlin may not be questioned as to Mr. Nicolello's motivations or deliberations.

Deposition of Dr. Trende as a Fact and Expert Witness

Dr. Trende requests the court to fix conditions on his deposition if it determines that he must be deposed. Specifically, Dr. Trende requests the following conditions: (1) that the court limit questioning at his deposition "to topics concerning the three publicly disclosed maps, as well as the maps proposed by the Republican and Democratic members of TDAC, respectively"; and (2) that Dr. Trende not sit for two depositions as both a fact witness and as defendants' expert.

Dr. Trende requests that he be deposed only as an expert witness, otherwise plaintiffs will be able to inquire into his methodologies, opinions, and analyses before defendants are able to depose plaintiffs' expert(s). Dr. Trende states that the conclusions from his social science analyses were provided during the legislative hearing and in the Troutman Pepper memoranda, and that the data underlying his analyses has been produced to plaintiffs. Dr. Trende asserts that, as a result, there are no additional "relevant facts" to be obtained from him, and allowing him to be deposed twice would only give plaintiffs an advantage in expert discovery.

Plaintiffs assert that Dr. Trende is a critical fact witness because he participated in evaluating the proposed maps that were rejected and in creating the proposed maps that were considered and ultimately adopted by the Legislature. Plaintiffs assert that the crucial decision not to draw districts that protected voters of color from racial vote dilution was based exclusively on Dr. Trende's "Gingles precondition analysis." They rely on National Union Fire Ins. Co. of Pittsburgh, Pa. v TransCanada Energy USA, Inc. (40 Misc 3d 703 [Sup Ct, NY County 2013]), which allowed separate depositions of the defendant's expert as both fact and expert witness because of the "special circumstances," including that plaintiff's experts would be "deprived of relevant facts." (Id. at 705-706; see also Taft Partners Dev. Group v Drizin, 277 AD2d 163, 163 [1st Dept{**86 Misc 3d at 678} 2000] [permitting depositions of accountant as both fact witness and expert because the allegations made were not based "on any facts personally known to defendant," but rather to the accountant through its review of relevant partnership documents].)

There is no question that Dr. Trende is a fact witness who should be deposed during fact discovery. Mr. Tseytlin cited Dr. Trende's analysis numerous times throughout his testimony during the February 16, 2023 legislative hearing. Therefore, Dr. Trende may be deposed as a fact witness in advance of his deposition as an expert witness. However, plaintiffs shall limit their inquiry during his deposition to facts and shall not inquire into his expert opinions. (Taft Partners Dev. Group v Drizin at 163.) The court will make itself available by phone to closely monitor the deposition, as needed. (Id.)

It is hereby ordered that Dr. Sean Trende's motion to quash the subpoena served upon him and for a protective order is denied, except to the extent that plaintiffs shall limit their inquiry during his fact deposition, and shall not inquire into his expert opinions until his expert deposition is held;^[FN9] and it is further ordered that if Dr. Trende will not appear voluntarily, an open commission issue to compel his appearance; and it is further ordered that Misha Tseytlin, Esq.'s motion to quash the subpoena served upon him and for a protective order is denied, except to the extent that plaintiffs shall not pose questions related to Richard Nicolello's motivations or deliberations.

The parties may seek rulings from the court on any objections which are made during the depositions by calling the chambers of the undersigned.

"[e]ach agency shall, in accordance with its published rules, make available for public inspection and copying all records, except those records or portions thereof that may be withheld pursuant to the exceptions of rights of access appearing in this subdivision. A denial of access shall not be based solely on the category or type of such record and shall be valid only when there is a particularized and specific justification for such denial. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:

"(a) are specifically exempted from disclosure by state or federal statute." (Public Officers Law § 87 [2].)