Case: 13-3088 Document: 251-5 Page:1 EXHIBIT4 11/06/2013 1086018 43 Case: 13-3088 Document: 251-5 Page: 2 11/06/2013 1086018 1 1 1 7clPdanC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 DANIELS, 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 Plaintiff, v. THE CITY OF NEW YORK, Defendant. ------------------------------x New York, N.Y. December 21, 2007 4:50 p.m. Before: 11 11 12 12 HON. SHIRA A. SCHEINDLIN, District Judge 13 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 3 11/06/2013 1086018 2 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (In open court) MS. GROSSMAN: Your Honor, may I just bring one issue to your attention? THE COURT: Not until I reach you. Good afternoon, Mr. Moore. MR. MOORE: Good afternoon, Judge. THE COURT: Good afternoon, Ms. Costello. MS. COSTELLO: Yes, good afternoon, your Honor. THE COURT: Mr. Franklin. And who is the person in between all of you? MS. COSTELLO: Your Honor, this is Garrett Wright, he is a recent law graduate from our office. THE COURT: And good afternoon, Ms. Grossman and Ms. Donahue. Yes, what is it? MS. GROSSMAN: There may be some reference to some confidential material during our conference, and I just wanted to bring that to the Court's attention, in that we believe the courtroom might have to be sealed for a very brief moment. For now, plaintiff's counsel is not prepared to raise those issues while we have other people here in the courtroom. I think we are fine to keep the courtroom open. THE COURT: I know who two of the people are, they are here on the criminal case. Who are the other people? A VOICE: We are with the Center for Constitutional SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 4 11/06/2013 1086018 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7clPdanC Rights. THE COURT: Are you both attorneys? A VOICE: I am an attorney. I am a paralegal. THE COURT: They are -- I understand your point. As soon as I can, I'd be happy to get the criminal case out of the courtroom. As soon as I can. Let me get started on this matter of Daniels versus The City of New York. I have a letter from the plaintiffs dated December 14, 2007. And they are seeking a number of things. But I suppose on the most immediate basis they are seeking some kind of an order extending the Court supervision by no less than a few months, for the sole purpose of letting them fully brief the request for relief in this letter. So there is no rush. So they are saying, the best way to have no rush and have no air is to have the defendant consent to a two-or-three month adjournment minimally, just so everybody can get these issues fully briefed and on the table. And if the Court denies all the relief, so be it. But rather than have them work it out in eight or nine days, you are saying just to get some kind of interest of justice extension or something. So I won't go into the rest of the relief they seek, more in terms of summarizing the letters, but the largest SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 5 11/06/2013 1086018 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7clPdanC overall summary is that there has been a lack of compliance in various ways with the stipulation of settlement. And so the Court should modify the stipulation of settlement order, specific performance of certain aspects of the stipulation of settlement. And then they ask for the third point of relief, which is what I think you were referring to, where they think there should be a modification of the protective order as to some of the terms that have been declared confidential. One reason is they say the Court will have to use some of the confidential information to determine what to do with the motion. But, secondly, they are saying some of it has been disclosed by the defendant in another context, and it is already much discussed, and you should withdraw the designation if it has been publicly disclosed. Then I received a letter in response dated December 19, but actually received in chambers December 20, which was yesterday. And yesterday was a relatively busy day on the bench. So the long and short of it, I haven't had a chance to study the attachments carefully. But I did have the opportunity to read the letter, which itself was long, I guess, the pages aren't numbered so I can't tell how many, there is a lot of single-spaced pages, five or six. And I did read them. And the quick summary of the defense letter is that plaintiffs want to pretend that the settlement agreement says SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 6 11/06/2013 1086018 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7clPdanC things it doesn't say. So the alleged breaches aren't breaches at all, because the settlement doesn't require the defendant to do what the plaintiffs say is a breach. And defendants write a number of times in the letter, plaintiffs may have wanted the stipulation of settlement to say these things, but it doesn't. And there were intense and detailed settlement negotiations. And if they didn't get what they didn't get, they can't complain about it now. And so the defendant opposes all the requests for relief, opposes any modification of the stipulation, opposes any order for specific performance, opposes any extension of the December 31 deadline, and opposes the modification of the protective order. All of that said, it would nonetheless be helpful to the Court and all the parties, in the nin~ days remaining between now and the 31st of December, to be -- deny this in an orderly fashion by extending the deadline. If the defendant refuses to do that, then the city is will write briefs every day for the next nine days. And if that's how you want to spend your Christmas and New Year's, that's up to you. You may have the better of all the arguments, but I need to get enough of a record to figure it out. And if you want to do that much all through Christmas and New Year's. Who is carrying the lead? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 7 11/06/2013 1086018 6 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MOORE: Ms. Costello. THE COURT: Well, Ms. Costello, I think you have sought of the burden to make your oral argument the equivalent of a reply letter. I think you need to answer all the points that Ms. Grossman made in her very thorough submission point by point. Because her points, as you notice, stay closely away from the merits, so to speak. And they try not to tell me about whether or not, you know, there is a policy of discrimination, or whether your statistics show discrimination. They want to talk procedure and they want to talk about what is or isn't in the stipulation. What rights you have or don't have in the stipulation. And I understand that is a contract and they are saying, no matter how bad things may be, that's not part of this lawsuit. Do you have another lawsuit to bring? But they placed some interesting alliance on the Latino Officers Association of The City of New York, where they quoted the Court as denying any further relief. And they thought that was a pretty good precedent for them. And it did seem to be a pretty good precedent for them. For example, at one point the Court -- now there is no guarantees in discrimination in the settlement document, and that Court said, quote, even a convincing demonstration of persistent discrimination would not mean that the defendants SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 8 11/06/2013 1086018 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7c1Pdanc are violating the provisions of the settlement agreement. That, sort of, is exactly the situation I may be in. You may be sort of seeing problems that are all very interesting but not part of this settlement agreement. So I think you need to give me a reply brief, if you wish, orally. MS. COSTELLO: Yes, your Honor. I can try my best. One point that the city raises about just the fact that there are no in substantial remedies in the consent decree. THE COURT: I have the consent decree. I think somebody attached it as Exhibit A. MS. GROSSMAN: Yes, your Honor. THE COURT: So you are going to have to show me, don't tell me you disagree, show me the language. MS. COSTELLO: In section Cl, your Honor, in section Cl. Let me just back up one second, your Honor. I think there were two ways, and this is part of what we would like to brief for the Court, there are two ways that the Court could extend the life of the consent decree and also grant our request for modification. One is within the Court's equitable powers and the second is standard under Ruffo for modification. I think what Ms. Grossman's letter focuses on is the straight reading, the non-compliance and specific performance and contempt proceeding that would result, flow from that which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 9 11/06/2013 1086018 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7clPdanC the dispute resolution mechanism in the agreement itself, if you look at the standard under Ruffo, a much more flexible standard that takes into account the public interest and the change in circumstances. The city doesn't address that at all. THE COURT: No, they never cite Ruffo, I don't think they did. I read it fairly quickly. MS. COSTELLO: Under the standard in Ruffo, we think that the modification would be appropriate. Putting that aside for the moment, and just looking at the language of the consent decree, section Cl of the stipulation requires that the NYPD shall have a written policy regarding racial or ethnic or national origin profiling, that complies with the United States Constitution and the New York State Constitution. And I think that we have shown that there is evidence of racial profiling going on. THE COURT: Even if there is evidence of racial profiling, that paragraph doesn't have anything to do with that. It says that the NYPD shall have a written policy that complies with the Constitution of both the United States and New York State. Okay, that's what they have to have. Do they have -- let me give you an example, let's say they had a written policy that complies with it, and that they violated it all the time. They wouldn't have violated SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 10 11/06/2013 1086018 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7clPdanC paragraph 1. Paragraph 1 says you have to have a written policy that complies with the -MS. COSTELLO: -- if you read paragraph Cl in connection with, which requires training on the policy, training on the officers in stop and frisk procedures, in section E there is a provision in there for palm cards which go out to individuals in the community. If they believe they have been improperly stopped and frisked they can file a complaint with the Civilian Complaint Review Board. We think that all of that means there was an implication of this policy -THE COURT: -- you are asking me to rewrite your settlement agreement. This is hypothetical, it is not a fact. I don't want anybody to be confused by reading the record. I am saying hypothetically if they have a written policy that complies with the Constitution of the United States and of New York State, regarding racial and ethnic origin profiling, they satisfied number 1, paragraph Cl. Even if there were evidence that they were violating their own policy, they still say that. Number 1 only requires them to have appropriate written policy. That seems to be the whole point of this notion that there is no guarantees in this agreement. Nowhere in the agreement is the city guaranteed that it will not have an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 11 11/06/2013 1086018 10 7clPdanC inappropriate racial profiling. There is no guarantee in here. It is exactly the same thing that Judge Kaplan was trying to say. MS. COSTELLO: If you look at section C2, which says that the NYPD may alter the policy -THE COURT: let me read that. It says: (Reading) The NYPD may alter the racial profiling policy at any time in compliance with paragraph Cl. That just means if they have the policy that isn't in compliance, and they want to make a written policy that is in compliance, I don't see that number 2 provides you the guarantee that you seem to be talking about. MS. COSTELLO: I think number 2 also relates to altering the policy. And I think that the intent of this agreement was not to bargain for a policy that meant nothing that the NYPD could just go out and violate people's Fourth Amendment rights and Fourteenth Amendment rights with no recourse to plaintiffs. I think that would -THE COURT: maybe it is an -- why don't you file a lawsuit? MS. COSTELLO: We did, we are here. THE COURT: No, you are struggling with the December 31, 2007 deadline in a 1999 case. And if you got proof of inappropriate racial profiling in a good constitutional case, why don't you bring a lawsuit? You can certainly mark it as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 12 11/06/2013 1086018 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7clPdanC related. How could it not be related to this whole long seven or eight years we have lived together on this case? Because you are trying to put a square peg in a round hole. And trying to force yourselves to argue what the settlement means, that it doesn't mean if you have a timely lawsuit -- you seem to have compiled interesting arguments Ms. Grossman has not rebutted maybe she did, that's why we didn't do something, because we didn't want them to write this letter, she -- let's just say she hasn't substantially responded to your letter. If one had only your letter, it would look like you have a lawsuit. So instead of struggling to telling me about a stipulation of settlement, why don't you craft a lawsuit? MS. COSTELLO: We could, but the only other issue is -THE COURT: That's what would I like to turn to. Can we talk about the noncompliant? MR. MOORE: Judge, could I just say a few things, before we do that? About the notion that what we were bargaining for was simply a piece of paper that had no substance to it. THE COURT: I didn't say it had no substance. But it didn't have the word guarantee. Didn't she write in her letter there were no guarantees? And Judge Kaplan talked about that in his settlement. I didn't have time to read his decision, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 13 11/06/2013 1086018 12 7clPdanC only read these two letters. Sometimes a Judge has some time and sometime not. I didn't have a lot of time, especially the city's letter just came in yesterday. MR. MOORE: To the extent that given my involvement with the case in the beginning, I can shed any light on that, on what our understanding was, about what we were bargaining for. We believed that we were getting a policy that the city would put into effect. That was, it is reason why we brought the lawsuit. And certainly as Ms. Costello said, there were not just -- they didn't just agree to change the written policy, they agreed to do several things. THE COURT: But we have to find them chapter and verse, because their argument -- I'd like to interrupt you just for a minute, and take this criminal case. (Recess) THE COURT:: I think you were speaking, Mr. Moore. MR. MOORE: I had been making a general observation about my understanding in the course of our negotiating this decree. I find it hard to believe that The City of New York would, in effect, say to this Court, or to anybody, well, we have a policy, but we don't have to follow it. THE COURT: I was saying as a hypothetical. I didn't say they said -SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 14 11/06/2013 1086018 13 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MOORE: -- I think they say that in their letter, that we can change the policy -- we can -- as long as we have a written policy, we can essentially do whatever we want. I just think that if that's, in fact, what the position of the city of New York is, it is a significant difference from what we understood we were getting, which was a policy that had some substance to it. Not just a policy on paper. It's sort of like passing the Thirteenth Amendment abolishing slavery as long as we have an amendment that you can't have slavery. But in practice we still have slavery. It seems to me it is a hyper technical interpretation of the words in the decree. The decree was meant to address what we believed was a serious issue with respect to racial profiling which, apparently, has not gone away. And even their own Rand study that they commissioned, suggests that at least with respect to the frisks, maybe not the stops, but even the frisks, that there is a racial disparity, that's their own expert's testimony, their own expert's report. So I just find the notion that we were tying to basically engage in a law school exercise of getting a policy that had no substance -THE COURT: well -MR. MOORE: -- contrary to my understanding and contrary (212) 805-0300 SOUTHERN DISTRICT REPORTERS, P.C. 43 Case: 13-3088 Document: 251-5 Page: 15 11/06/2013 1086018 14 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: -- I will quote from page 4 of the letter, the first full paragraph. (Reading) In conclusion, it is important to state that plaintiffs vigorously bargained for a provision which would create for an obligation on the part of the defendants to guarantee that there would be no racial profiling. The city refused to agree to such a term for reasons here are negotiated. MR. MOORE: I don't know, there is no citation to that, there is no -- it is sort of, in a way, it was -- maybe it was by being silent they hoped that we wouldn't say to you, say to the city, and you are going to comply with that, you are going to actually implement the policy. I don't think -- I mean, a municipality that agrees to adopt a policy should be then saying, now that we have adopted a written policy, we don't have to implement it in practice. When, in fact, they were making -- they were, you know, there was information sent out that there was a racial -THE COURT: -- what I am trying to say -- I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit. You can simply MR. MOORE: $350. THE COURT: I knew I had it wrong. The city violates its own written policy, the city has a policy that violates -- they have violated their policy, here SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 16 11/06/2013 1086018 15 7clPdanC is the proof of it, please give us the remedy. Injunction or damages, or whatever lawyers ask for in compliance. So for $350 you can bring that lawsuit and it is timely. I don't understand why we have to potentially have, you know, months of briefing when it does fit under this stipulation or it doesn't, that Ruffo applies or it doesn't that the Court has the power to extend the BUpervision, that we want an immediate appeal to the circuit. Why do you need that if you have a lawsuit? Bring it. They have a written policy, right? MS. GROSSMAN: Yes, your Honor. THE COURT: If you think they are violating their written policy, sue them. MS. COSTELLO: Your Honor, just two quick points. One is about the point your Honor's raising about just filing a new lawsuit. The one issue for us in that particular scenario is that the protective order is still in effect. Once this case ends, we have to give back all of the data. So unless the Court is prepared to modify the protective order and lift it, we would not have the benefit of that data until we filed a new case and engaged in discovery and battles with the city to get that same information again, and then another battle over a protective order again. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 17 11/06/2013 1086018 16 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So we see it in the interests of judicial economy, if the Court would lift the protective order in this case, since under the language of the stipulation -- and we pointed, if the information is otherwise made publicly available. THE COURT: That's something I do want to talk to the city about. If it is publicly available, then I don't understand why you can't use publicly-available information in drafting your suit, or for whatever other purpose. If something is publicly available and I can get it and anybody who is in the public library can get it, or using the Internet can get it, if anybody calls the city's green book office, can get it, then it is public. Can you do this from public information or not? MS. COSTELLO: It is not that publicly available. THE COURT: You can't have it both ways. If it is public you can use it and I don't think the city can ever argue that you can't. Once you backtrack and say it is really not public, then you are making their argument. MS. COSTELLO: It is public. The only problem is that the information that the city has put out, just as Ms. Grossman's letter said, it is our data, we can use it however we would like to. The information that's been put out by the Rand Corporation, and we have a copy of the study, is that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 18 11/06/2013 1086018 17 7clPdanC Rand Corporation and the NYPD's spin using magic wands about what the data means, our analysis and conversation with an expert shows us different things, that the Rand information has used benchmark and other statistical methods to explain away. So it is publicly available in the sense that the NYPD and the Rand publication has written details in the Daily News and otherwise made that information available. But in the sense the data that we have that may differ from what the city has put out, is not publicly available. Because that's our analysis and that's our impressions and our statisticians and numbers of what the patterns show. So our information is different than what the city has, some of which is the same. Rand reached some of the same conclusions about the data. But they have also ignored some of the other information, particularly racial disparities and the frisks leading to arrests and the weapons recovery that we think are indicative of racial profiling. MR. FRANKLIN: Your Honor, in terms how the data is collected, we have the data on discs fromĀ· the city, which makes it that much easier to compute. This information is public, but it is public in hard copies. And so it is public not only through the Rand study, but also through the study that they, the city, gave to the city counsel. But they are both access to the data is here, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 19 11/06/2013 1086018 18 7clPdanC but it is in a format which is highly unusable in terms of making statistical analysis and breaking down data, which would take us months to recompile. THE COURT: As I was saying earlier, Ms. Costello responded with how difficult it would be to get the material again. There is enough in the public record to craft the suit. And then in that suit simply say, we want produced all that was produced in the 1999 lawsuit. I don't know how you could lose getting it. It may be a question of whether it is still going to be under protective order or not. But I can hardly imagine not getting it. You know what I am saying? It is so obvious to me that any Judge would require them to reproduce it to you in the same format that you have it, that you will have it again. Whether or not it remains confidential. MR. FRANKLIN: We'll have it again, but we have to go through the same process we have gone through. We have to turn everything back to the city under this protective order. So if we get it back we have to again recalculate the same information that we already have. THE COURT:: You have to go through recalculating? Why would that be? MR. FRANKLIN: Because under the protective order we have to give them back that information. THE COURT: Not just what they gave you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 20 11/06/2013 1086018 19 7clPdanC. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FRANKLIN: If my reading is correct, it's what they gave us and -MS. COSTELLO: everything derived from the UF250 database. So it is the actual physical discs that the data is contained on, which are thousands and -- tens -- hundreds of thousands of entries, as well as any information that we derived. So any of the work that our statistician has done with coding, would have to be given back to the city. We couldn't retain that information. THE COURT:: Your attorney work product and published material, all that stuff would have to go back? That seems odd to me. I don't know why it can't be stored under the terms of confidentiality. This is not practical. MS. COSTELLO: Your Honor, if I could, I am just going to take one minute and look at the protective order to make sure. MR. FRANKLIN: Unless the city disputes that. THE COURT: We aren't getting too far off the substance, are we? MR. MOORE: Judge, the protective order -THE COURT:: -- where is that? Do I have that? MR. MOORE: I don't think you have a copy. THE COURT: Do you have that, Ms. Grossman? Is that attached SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 21 11/06/2013 1086018 20 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. GROSSMAN: -- your Honor -MR. MOORE: I can hand you up a copy, Judge. THE COURT:: This is June 31, 2000 -- I'm sorry January 31, 2000. Yes, it will be eight years this January. MR. MOORE: Paragraph 7, I think, is the provision that is at issue here. THE COURT:: Let's read it. (Reading) Within 30 days after the termination of this case, including any appeals, the confidential materials, including all copies, notes and other materials containing or referring to information derived therefrom, shall be returned to the producing party's attorneys, or upon their consent, destroyed. And all persons who possess such materials shall verify their return or destruction by affidavit furnished to the producing party's attorneys. And paragraph 8 says: (Reading) The terms of this order may be modified by further order of the Court. So obviously 30 days after termination of this case is January 30, 2008, right? If the case terminates December 31 -MS. GROSSMAN: -- I think, your Honor, the termination date was the termination when we entered into the effective date of the agreement. THE COURT: It couldn't be, because -- they would have owed this stuff back to you years ago. MS. GROSSMAN: They did. They returned all documents they were required to return when the agreement was executed, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 22 11/06/2013 1086018 21 7clPdanC and when it was finalized by the Court. So the agreement incorporates the protective order and basically says that the plaintiffs need to return the documents, maintain the confidentiality, and return them after the agreement sunsets. That's expected after the agreement terminates. The protective order was, the plaintiffs were subject to the protective order, to maintain the confidentiality, but -THE COURT: -- I am not following you at all. I still say they don't have to return all that they now still retain until January 30, 2008, thirty days after the termination of this case. I am still supervising this case, that's why you are worried about my extending it even one day, because my supervision runs out on December 31, '07. So I still have this case. So, therefore, it is not 30 days after the termination of this case. They are talking about the very material they have -MR. MOORE: We got material -THE COURT: as recently as October. So, of course, you didn't return it 30 days after the case number was closed. Obviously it is not due back till January 30 or 31st of 2008. All I am saying is, by then if you have a lawsuit pending and need the very same material, and I have the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 23 11/06/2013 1086018 22 7clPdanC authority to modify the terms of this order by a further order of the Court, which the city agreed to, then I will, and I will say, you have the material, hold on to it, remains confidential, somebody says otherwise, and use it as you need to use it in your new lawsuit. I don't want to play games here, if there is a violation of the city's racial profiling policy that's not what it is called,. MR. MOORE: That's what it is called. THE COURT: Okay. Strange. Kind of a MR. MOORE: -- it should be nonracial. THE COURT: Yes. If there is a violation of it, there is a violation, and that's a lawsuit, and that's that. It still strikes me as making it more difficult, a square peg in a round hole, to force it into this stipulation of settlement, and got into all these questions about you tried to get a guarantee. You didn't get a guarantee, you fought for it, but they stood firm and they didn't get it to you. La, la, la. But okay, this is only the beginning. We can go through their whole letter and respond to all their points. We didn't get too far. You were going to -- we started with Cl. MR. MOORE: Just one second, Judge. THE COURT: Yes. (Discussion off the record) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 24 11/06/2013 1086018 23 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. GROSSMAN: Your Honor, if I may just address the issue of the confidentiality. THE COURT: Yes. MS. GROSSMAN: If you were to look at paragraph 4 -I'm sorry, H4. THE COURT: What stipulation of settlement, A4? MS. GROSSMAN: H4. THE COURT: Yes, okay. MS. GROSSMAN: If you would bear with me, your Honor. If I could just walk you through the first and explain what it refers to. The first on paragraph 4 page 11 it says, all confidential documents -THE COURT: wait a minute, I am on page 11 -- oh, H, okay. MS. GROSSMAN: (Reading) All confidential documents subject to the January 31, 2000 protective order, and copies made thereof, produced to plaintiffs by defendants prior to the effective date, shall be returned to the Corporation Counsel's office upon the effective date. Unless prior to that date defendants have expressly authorized the retention of specific documents itemized in writing by plaintiffs until, at the latest, the termination of the stipulation. Now, let me just take a break. That information was all the documents provided during the litigation. The plaintiffs complied with that provision in the agreement and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 25 11/06/2013 1086018 24 7clPdanC returned all the documents to the city with the exception of a few items that they wrote -- put in writing, and they were allowed to maintain. Now we move on to all documents provided to plaintiffs in any form by defendants under the terms and during the course of this stipulation shall be deemed confidential, and plaintiffs shall return to the Corporation Counsel's office all such documents, and any copies made thereof, upon the termination of this stipulation. So at the very least we know that posteffective date of the agreement, the plaintiffs, under the terms of this agreement, which they contracted for, which we all agreed to, are to be returned to the city. THE COURT: Well, that's good, but I don't think it is good enough. Because I think the Court's order is ambiguous or contradictory to that by saying that it extends to 30 days after the termination of this case. Now, you want to interpret the phrase termination of this case differently than I do. I don't have it in front of me, I will find it. Actually it is attached to this in the protective -- the protective order -MR. FRANKLIN: -- it's the last attachment. THE COURT: I have it dated January 31, 2000. Is that part of the stipulation of settlement -- yes, it must be, Exhibit C to the stipulation of settlement. And the exhibit SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 26 11/06/2013 1086018 25 7clPdanC itself says, the very date of the termination of this case. So I have essentially two clauses of the same stipulation of settlement that disagree. And -MR. MOORE: -- essentially what we are talking about is 30 days. THE COURT: Oh, I understand. But the city does not want you to have these to be able to craft this complaint. And it also seems childish to me. It is in your letter, it is all there already. As I say, I have got two conflicting clauses in front of me, they are both part of the settlement,. MS. GROSSMAN: I believe, your Honor, if you were to look at paragraph 4, the plain meaning THE COURT: 4? MS. GROSSMAN: the same - THE COURT: H4. MS. GROSSMAN: H4. THE COURT:: I know what H4 said, I don't even argue that it is wrong, but it conflicts with Exhibit C. Exhibit C tells me that within 30 days of termination of the case, and I say this case is open until the Court's supervision ends on December 31 of 2007 MR. MOORE: -- Judge -THE COURT: -- and it says that I have the power to modify that protective order at any time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 27 11/06/2013 1086018 26 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In terms of this -- by further order of the Court. So I certainly have the power to modify that protective order until December 31 of '07. And so to that extent, I surely would modify it to my own reading of it, which is 30 days after the case terminates, which is January 30, '08. I am happy to keep going with your letter if you want to go through chapter and verse, and try to still make your points in your letter, try to convince me. I don't like the idea of having to work on it in the next eight days under that gun. But that's what it is coming to. It does not seem to me that would be. MS. COSTELLO: Your Honor, putting aside the issue of the modification as it relates to the racial profiling issues. THE COURT: Let's turn to something else then. MS. COSTELLO: The specific performance issues other than that which would include the training. THE COURT:: Let's talk about it. The city wrote about that too. I don't see a subheading actually called training. Ms. Grossman can tell me where in this letter it is? MR. MOORE: Subsection C. THE COURT: Subsection C. There it is, training, okay. MS. COSTELLO: Basically under the agreement section, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 28 11/06/2013 1086018 27 7clPdanC and I will point the Court to CS, and actually section E, of the stipulation -THE COURT: -- E is the one they refer to? MS. COSTELLO: Yes. THE COURT: Training. MS. COSTELLO: We've had several conversations with the city through letters and verbally about the fact that there has never been any verification that the training specified in section E has occurred. The city's position is, as I understand it, is that we are not entitled to it. And we would disagree with that. THE COURT: Let's look at the plain language of the settlement agreement. I don't know how much we are going to have to read, but we will read as much as we have to. 1: The NYPD has conducted in-service training regarding the racial profiling policy, which has been presented to NYPD commands. The NYPD shall provide annual in-service training regarding the racial profiling policy. 2: The NYPD shall maintain that portion of the police academy curriculum that pertains to training regarding the racial profiling policy. 3: The NYPD shall continue to train police officers about the legal and factual bases for conducting and documenting stop, question and frisk activity. Continue to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 29 11/06/2013 1086018 28 7clPdanC implement the police academy curriculum for training police officer recruits about the legal and factual bases for conducting and documenting stop, question and frisk activity. And continue to provide training for police academy instructors. MR. MOORE: Judge -THE COURT: about the legal and factual bases for conducting for and -- and then all I can say is that paragraph 4 says, the NYPD shall continue to train, and 5 says the NYPD shall continue to provide training. Number 6 says, the police academy will continue to consider informally, factual incidents brought to its attention for use in training. 7 says, the NYPD is reviewing the recruit curriculum and is part of the process, the Commissioner will conduct a review. 8 says, the NYPD will continue to provide full promoted sergeants and lieutenants with training, 9: The municipal defendants have provided to -- and 10 says: The NYPD shall continue to document training provided for in this stipulation in the same manner and consistent with existing practices and procedures employed by the NYPD. Now, I have read it all. Nowhere does it say they will turn anything over to class counsel or report to class counsel. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 30 11/06/2013 1086018 29 7clPdanC MR. MOORE: 1 To verify, the word verification does not 2 appear. 3 THE COURT: Or report or turn over -MR. MOORE: if you look at subsection CS of the agreement. THE COURT: Okay, let me now turn to cs. The NYPD shall supervise, monitor and train officers regarding the racial profiling policy as set forth below. MR. MOORE: So that's an affirmative duty on the NYPD. THE COURT: That's true. MR. MOORE: To supervise, monitor and train officers regarding the racial profiling. In order to determine whether they are fulfilling their duty, whether they have lived up to the terms of this agreement, we would argue that they should tell us what they are doing. THE COURT: Why didn't you get that into the agreement? Why didn't you say, shall produce on a quarterly basis its training materials for counsel's review? There is nothing in there. There are no obligations other than to do it. But not to let you know through documentation. MR. MOORE: But if they are not doing it, the only way we can know if they are not doing it is by asking them if they are doing it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 80S-0300 4 s 6 7 8 9 10 11 12 13 14 lS 16 17 18 19 20 21 22 23 24 2S 43 Case: 13-3088 Document: 251-5 Page: 31 11/06/2013 1086018 30 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I understand. MR. MOORE: It seems to me that that's an inherent obligation on the part of the city. THE COURT: But this thing was signed January 9, 2004. I mean, that's almost four years ago. Did you ever write them a demand letter and say, please document that you are doing training? Or we believe you are -- or we believe you are not doing training, we are worried about that, please send us copies MS. COSTELLO: -- we did -THE COURT:: -- why are we doing this on December 21 of '07? MS. COSTELLO: We did, your Honor, we asked in April, and some of those letters were provided to the Court. THE COURT: I 07? MS. COSTELLO: Yes, this year. We asked them in February, in April. THE COURT: For what? MS. COSTELLO: For proof that they were conducting the training in accordance -THE COURT: and their response was? MS. COSTELLO: That they did not read the stipulation to require it. THE COURT: Why didn't you come to court then? It is nine days before December 31. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 32 11/06/2013 1086018 31 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. COSTELLO: Part of this, your Honor, is that we were attempting to work it out with the city. Ms. Grossman and I, in September, were -THE COURT: -- I hear you. But the position you put me in is to have some kind of real brief motion, you would like to brief these issues, you would like to brief Ruffo and its progeny orally. You want your brief due on 10 a.m. on the 26th and their brief at 10 on the 28th, and the reply on the 31st? MS. COSTELLO: That's what we proposed, there be six months of extension. THE COURT: Haven't we been down that road once? MS. COSTELLO: Yes, we have, your Honor. Some of the cases that we cited before we would still say that the equitable power of the Court -THE COURT:: Didn't I do it and undo it? MS. COSTELLO: You did undo it. THE COURT: And wrote an opinion too. MS. COSTELLO: Part of that, your Honor, was that we had not followed the dispute resolution in the decree and we have -THE COURT: -- they wrote you didn't. Didn't you write that, Ms. Grossman, they didn't follow the dispute resolution again? MS. GROSSMAN: That's right. MS. COSTELLO: We disagree. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 33 11/06/2013 1086018 32 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: But I am not being given much time to understand that. They are saying you didn't, they are saying something about 30 days. In what way didn't they file a dispute resolution -MS. GROSSMAN: -- they were supposed to wait until 30 days to seek relief from the Court. THE COURT: Wait until 30 days from what? MS. GROSSMAN: From the date that they have, gave notification to us. The notification that they are required to give is by fax and hand service. THE COURT: And they faxed you a letter. MS. GROSSMAN: Friday evening. THE COURT: December what? MS. GROSSMAN: November 30, Friday evening, 7:03 p.m. And they did not deliver a document by hand Friday for us to have notice. And it wasn't until Monday, December 3, there was no by hand delivery at all. So they haven't complied with the terms of the agreement in terms of giving proper notice, which then would bring us beyond the December 31 sunset provision in terms of when they would be able to seek relief from the Court. The first time they raised the issue about the racial profiling was on November 30. MR. MOORE: Judge -MS. GROSSMAN: -- the first time they raised an issue about another item concerning joint community forums was on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 34 11/06/2013 1086018 33 7clPdanC November 30. THE COURT: Which falls within the 30 days. But you are saying out of the technicality, the reason that it is important was because, that's important because you weren't in the office at 7:03 on a Friday night and didn't see it until Monday. The city is saying it didn't have actual notice on November 30, but on December 3. MR. MOORE: We were before you in April, and we were raising the issues about the fact that they hadn't produced the database. And, you know, we didn't get that until October. THE COURT: I know -MR. MOORE: -- that sort of sidetracked us a little bit. And I think, though, that now that we have had the data THE COURT:: -- but that didn't relate to things like not having proof of training, and proof of community forum, which you didn't think was going on. There were other complaints that you could have raised in time to get some real rulings on violations or not. I might have still said at the end of the day, with respect to training, they undertook no obligation to report to you, you would argue back, no, but they took on an obligation to do it, how are we supposed to judge compliance if we can't get discovery. But discovery is different than a reporting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 35 11/06/2013 1086018 34 7clPdanC requirement. MR. MOORE: I guess it brings me to my other point which if, in fact, the city is of the opinion that all they have to do is have a written policy, and they have a written policy, what harm is there to the city in agreeing to extend this for two months, three months, whatever it may be, if in fact, as they say, are all that it requires them to do is have something on paper that says we won't engage -THE COURT: -- you don't know if they have a written policy? MR. MOORE: I do know that they implemented a written policy. There was -- I haven't looked at it in the last few weeks. But I do believe there is a written policy. My point is that if, in fact, all they are required to do under this settlement agreement is to have a written policy, what harm is there in extending this agreement for a couple of months, for us to resolve these issues and decide, for instance, decide whether we want to just put this thing to bed and, you know, start another case. If that's what we want to do. If we believe that that evidence of racial profiling is there, you make a very strong point about trying to put a square peg in a round hole, whatever that might be. But my point is, what harm would there be -- I guess the answer is, it's a common-sense argument. It is not a lawyerly argument. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 36 11/06/2013 1086018 35 7clPdanC That's the problem. THE COURT: Unfortunately we all chose this profession, and some days we ask yourselves why. Lawyers have the right to stand on technicalities. The Supreme Court issued some opinion last year that said, yes, the federal Judge -- that -- the Supreme Court said you are time barred, you have to file an appeal ten days after judgement, telling your attorney you want an appeal is not enough. You should have listened to that Federal Judge. The consenting Justices were outraged, but there you have it. The other justices thought it was a fine thing to say it on the technicality. The District Judge told the prisoner you have that time. A career prisoner should have known better than a federal Judge. The law is full of technicalities. Why doesn't the city agree to extend it? Because they don't want to. And if they don't have to, they don't want to. What am I going to do? Tell them, practically speaking, he's right, why don't you give us all time to brief this and decide this? They could say, that's very nice, but we decline. You want me to get it on the -- would you agree to extend this two to three months? We can get a briefing schedule. MS. GROSSMAN: Your Honor, I am not authorized to agree to that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 37 11/06/2013 1086018 36 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. COSTELLO: I have one point on the training issue, Exhibit 1 to our letter, the December 4 letter that I wrote to Ms. Grossman. If you look at the third page -- page 2 at the bottom THE COURT: I got a problem, the November 30 letter MS. COSTELLO: -- no, I'm sorry, the letter that we delivered to the Court last Friday. THE COURT:: Oh, yes. MS. COSTELLO: Exhibit 1 to that. THE COURT:: Exhibit 1 is the November 30 letter. MS. COSTELLO: Maybe it is Exhibit 2, your Honor. THE COURT: Exhibit 2 is the February 16 letter. MS. COSTELLO: There should be a September 4 letter, your Honor. THE COURT: That's Exhibit 3. Page 2 at the bottom. MS. COSTELLO: On the next page we explain to the city that we think they are not in compliance with the training requirements, just as we thought they were not in compliance with the auditing of the training requirements. THE COURT: But you didn't bring it to my attention, is all I am trying to say. Of course, now what you are saying is you did satisfy the dispute resolution mechanism. Is that your argument, that by the September 4 letter you did, in fact, satisfy the dispute resolution requirement? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 38 11/06/2013 1086018 37 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MOORE: Yes. MS. COSTELLO: As Ms. Grossman and I had conversations in which we were attempting to see if the city would give us some documentation showing that the training had occurred. THE COURT: Ms. Grossman, did the plaintiff satisfy the dispute resolution by raising the issue on September 4? MS. GROSSMAN: On the training? THE COURT: In writing. MS. GROSSMAN: The one piece on the training, yes. But when I mentioned that the issue about the racial profiling was first -- first -THE COURT: -- but we got lots of issues. Let's deal with training. So they satisfied the dispute -MS. GROSSMAN: -- yes. THE COURT: What flows from the fact that they said the dispute resolution mechanism on the training point? And you raised some kind of defense. MS. GROSSMAN: I'm sorry, your Honor, were you addressing me? THE COURT: I said, what flows from the fact that they satisfied the dispute resolution mechanism. MS. GROSSMAN: Our response to that, your Honor, was that they misinterpreted the agreement, that they are rewriting the agreement. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 39 11/06/2013 1086018 38 7clPdanC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Meaning procedurally, if they satisfied the dispute resolution mechanism by giving you 30 days, what flows from that, they are allowed to come to court. MS. GROSSMAN: Yes. THE COURT: So they alluded to come to court on that one because they satisfied the dispute -- and they want to say because of, in their view, of the training requirement being violated, that is a basis for this Court to extend supervision, and/or compel specific performance. MS. GROSSMAN: Your Honor, the agreement is very specific. It permits specific performance. And then I would submit, your Honor, that they have to provide sufficient notice to the Court to enable all parties to perform. And to give seven days. And to give notice on this schedule is not what I believe is contemplated by the agreement. THE COURT: Well, I don't know. They satisfied the dispute resolution mechanism, we all agree with that, on this issue, and they, then they have the right to come to court. And they have come to court. I can say, based on their complaint regarding training, I need to have full briefings in order to give the Court an appropriate amount of time to decide whether there has been a violation. I have to extend the deadline to decide the motion properly. MS. GROSSMAN: We would submit, your Honor, that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 Document: 251-5 Page: 40 11/06/2013 1086018 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7clPdanC that's not the dispute -- that is not a remedy available under the agreement. THE COURT: The remedy you agreed to is, they can bring a dispute to court after giving you 30 days notice. MS. GROSSMAN: But there is no -THE COURT: -- inherent power. I can't decide a motion that's not briefed. It is timely, it was brought before the expiration of this agreement, they satisfied the dispute resolution mechanism, the Court has the power to operate its own docket. I can't decide a motion, an important one, that's not briefed. Is there any other exhausted issue, so to speak, besides the training one? Should we continue with the letter since they agreed that you -- what's the next one? MS. GROSSMAN: Your Honor, I would just add on the training piece, there is no good-faith belief given. What we just walked through of the verification that there was an absence of language THE COURT: -- but Mr. Moore makes some practical point. There is no point in the city agreeing to do something, there is no way to find out whether they did comply. Otherwise you have a right without a remedy. You have a meaningless agreement. That cannot be the intent of the parties to say, we will provide training but ha, ha, if we don't, you can't find SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 41 11/06/2013 1086018 40 7clPdanC out and you can't take us to go task for it. That can't make sense. MS. GROSSMAN: Your Honor -THE COURT: but I am going to run out of time and patience shortly. I would like to move right past the training to the next exhaustive claim. Is there another -MS. GROSSMAN: may I just be heard once on the training? THE COURT: No. MS. GROSSMAN: To talk -- we had negotiations on the document being -THE COURT: no. MS. GROSSMAN: bank added to the agreement and we rejected it -THE COURT: no MS. GROSSMAN: the plaintiffs wrote -THE COURT: no, I don't want to hear anymore about training. I want to hear other issues that are ready for the Court. What other issues have you exhausted? MS. COSTELLO: We are going to concede the other two issues, they are minor. We think the training is the -THE COURT: the city says they have a right to stand on the technicality on the violation of the racial profiling policy, you didn't give them the notice till December SOUTHERN DISTRICT REPORTERS, P.C. (212) B05-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Document: 251-5 Page: 42 11/06/2013 1086018 41 7clPdanC 3, so you can't bring that one to court in time for the stipulation of settlement to expire. So the only one that's live is the training. If that's all we have to do between now and the 31st, maybe we can brief it and decide it. It is one issue not five, not four, not six. I still say, putting a square peg in a round hole and all you have to do is bring a lawsuit, my interpretation of that protective order is that you have the documents till the end of January. MR. FRANKLIN: Your Honor, can we take two minutes? THE COURT: Please. (Recess) THE COURT: Mr. Moore. MR. MOORE: Judge, after consulting with my colleagues, I think we have come to a position that if we have -- if the Court is willing to permit.us to hold the data that we have until the end of January, 30 days after the expiration of this agreement, we would be willing to withdraw this motion at this point. And engage in this process of bringing another lawsuit or not. THE COURT: I think I said it many times on this record, that that's my interpretation of this agreement. And that is the way I am ruling, that's what it said, 30 days after the termination of this case, which to me it finally SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 Case: 13-3088 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Document: 251-5 Page: 43 11/06/2013 1086018 42 7clPdanC terminates, termination December 31, '07, they remain confidential. But that doesn't mean you can't use them. MR. MOORE: To the extent that some of the materials have already been made public, -THE COURT: -- what's public is public. If you cite to the Rand study, publicly, nobody can criticize you for that. If they do, they weren't acting in good faith. If I can get the Rand study on the Internet, it is public -MR. MOORE: -- you can go to the NYPD website, your Honor. THE COURT: There you go, that's public. You can use that. And as I said before, I would accept it as a related case, which the plaintiff has the power to designate. I think this current motion is withdrawn. Thank you. ALL COUNSEL: Thank you, your Honor. 16 17 18 oOo 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43