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Exhibit K
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHARLOTTE BENNETT,
Plaintiff, 22 Civ. 7846 (VSB) (SLC)
v
ANDREW M. CUOMO, MELISSA DEROSA,
JILL DESROSIERS, and JUDITH MOGUL,
Defendants.
MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO COMPEL
AND IN SUPPORT OF CROSS-MOTION TO QUASH SUBPOENA
Serena Longley
Deputy General Counsel
Office of the New York State Attorney
General
28 Liberty St. New York, 10005
(212) 416-8178
Serena.Longley@ag.ny.gov
Anne L. Clark
Vladeck, Raskin & Clark, P.C.
111 Broadway, Suite 1505
New York, New York 10006
aclark@vladeck.com
Andrew Weaver
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
(212) 225-2354
aweaver@cgsh.com
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Table of Contents
Table of Authorities ................................................................................................................... ii
Preliminary Statement ................................................................................................................ 1
Background .............................................................................................................................. 2
Argument ................................................................................................................................. 3
I. OAG is the Real Party in Interest for Purposes of Enforcing the Firm Subpoenas ....................... 3
A. The Investigation Materials Were Created or Collected By the Special Deputies in Their
Official Capacity as State Actors................................................................................ 3
B. The Investigation Materials are State Records in Custody and Control of OAG................. 8
II. All Defenses Available to OAG Apply to the Investigation Materials in the Hands of the Firms as
Legal Counsel to OAG...................................................................................................... 9
Conclusion ..............................................................................................................................10
i
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TABLE OF AUTHORITIES
Page(s)
Rules and Statutes
New York Executive Law § 63(8) ..................................................................................... 1, 2, 4, 7
Fed. R. Civ. P. 45 ........................................................................................................... 8, 10
Cases
Alltel Comm’ns, LLC v. DeJordy,
675 F.3d 1100 (8th Cir. 2012) ........................................................................................... 4
Boron Oil Co. v. Downie,
873 F.2d 67 (4th Cir. 1989) .............................................................................................. 5
Catskill Dev., LLC v. Park Place Entertainment Corp.,
206 F.R.D. 78 (S.D.N.Y. 2002) ......................................................................................... 4, 5, 6
Ex parte Young,
209 U.S. 123 (1908) ........................................................................................................ 6
Felix v. Cnty. of Nassau,
344 F.R.D. 441 (E.D.N.Y. 2023) ....................................................................................... 3, 7, 10
Fisher v. United States,
425 U.S. 391 (1976) ........................................................................................................ 10
Hake v. Citibank, N.A.,
2020 WL 1467132 (S.D.N.Y. Mar. 26, 2020) ...................................................................... 9
In re Grand Jury,
705 F.3d 133 (3d Cir. 2012) ............................................................................................. 9
Johnson v. Santini,
2015 WL 1806328 (D. Colo. Apr. 17, 2015) ....................................................................... 8
Kiobel by Samkalden v. Cravath, Swaine & Moore,
895 F.3d 238 (2d Cir. 2018) ............................................................................................. 9
Lewis v. Clarke,
581 U.S. 155 (2017) ........................................................................................................ 5
McGinty v. New York,
251 F.3d 84 (2d Cir. 2001) ............................................................................................... 4
ii
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Papasan v. Allain,
478 U.S. 265 (1986) ........................................................................................................ 6
Russell v. Jones,
49 F.4th 507 (5th Cir. 2022) ............................................................................................. 4, 5
Tiffany (NJ) LLC v. Qi Andrew,
276 F.R.D. 143 (S.D.N.Y. 2011), aff’d, 2011 WL 11562419 (S.D.N.Y. Nov. 14, 2011) ............. 8
U.S. Dep’t of Just. v. Ricco Jonas,
24 F.4th 718 (1st Cir. 2022).............................................................................................. 6, 7
U.S. EPA v. General Elec. Co.,
197 F.3d 592 (2d Cir. 1999), am. on reh’g on other grounds, 212 F.3d 689 (2d Cir. 2000) ......... 3, 6
United States v. 2121 Celeste Rd. SW, Albuquerque, N.M.,
307 F.R.D. 572 (D.N.M. 2015) ......................................................................................... 8
Virginia Off. for Prot. & Advoc. v. Stewart,
563 U.S. 247 (2011) ........................................................................................................ 6
iii
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PRELIMINARY STATEMENT
To the extent this Court finds that the New York State Office of the Attorney General
(the “OAG”) enjoys sovereign immunity in relation to the subpoena served on OAG (the “OAG
Subpoena”), such immunity must also extend to the subpoenas served on the law firms OAG
retained to carry out an N.Y. Executive Law § 63(8) investigation, Vladeck, Raskin & Clark,
P.C. (“Vladeck”), and Cleary Gottlieb Steen & Hamilton LLP (“Cleary Gottlieb,” together with
Vladeck, the “Firms”) (the “Firm Subpoenas”).1 Defendant Andrew Cuomo (“Cuomo”) cannot
serve duplicative subpoenas on the Firms, seeking identical information sought from OAG, in
order to subvert a decision by this Court that OAG is protected from enforcement of the OAG
Subpoena on the basis of sovereign immunity. A contrary result would render OAG’s sovereign
immunity meaningless.
OAG is the real party in interest for purposes of the present motions, as the Firm
Subpoenas exclusively seek state records under the control of and belonging to OAG, created
and maintained by lawyers appointed as Special Deputies to the First Deputy Attorney General
(the “Special Deputies”) under the authority of N.Y. Executive Law § 63(8). Sovereign
immunity is designed to protect the dignity of the state from being compelled to act. An order
compelling the Firms to comply with the Firm Subpoenas would result in the same actions and
steps that would be taken if OAG was ordered by this Court to comply with the OAG Subpoena.
Defendant Cuomo’s attempt to paint the Firms as purely private outside entities, or as
“contractors,” “free” from any connection with the state, is misleading and ignores reality.
1
Pursuant to the Court’s direction, see Hrg. Tr. dated Feb. 26, 2024 at 29:16-30:4, attached as Ex. 1 to Decl. of
Andrew Weaver dated Mar. 26, 2024, the only issue to be briefed with respect to the Firm Subpoenas is whether the
Firms may invoke the same sovereign immunity defense as OAG as the parties agree that all other defenses and
objections to the Firm Subpoenas that the Firms would otherwise assert are the same as those raised by OAG in
connection with the OAG Subpoena and will be addressed in connection with the parallel motion by Defendant
Cuomo to compel OAG and in support of OAG’s cross-motion to quash. See OAG Mem. of Law in Supp. of Cross-
Mot. to Quash and Opp’n to Mot. to Compel (“OAG Mem.”), ECF No. 223.
1
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Moreover, it is black letter law that any defense enjoyed by OAG regarding its documents and
materials must necessarily apply to those same materials held by the Firms as counsel to OAG.
Defendant Cuomo’s effort to make an end run around OAG’s sovereign immunity is not
supported by the facts here or the applicable law and should be rejected.
BACKGROUND
On March 1, 2021, then-Governor Cuomo made a referral pursuant to N.Y. Executive
Law § 63(8) (“Section 63(8)”) for the New York State Attorney General, Letitia James, to select
independent lawyers to investigate “allegations of and circumstances surrounding sexual
harassment claims made against the Governor” (the “Referral”). See ECF No. 195 at 1 n.1.
Section 63(8) permits the Attorney General, with the approval of the Governor and when
directed by the Governor, to “inquire into matters concerning the public peace, public safety and
public justice” (the “Investigation”). See Section 63(8). Section 63(8) grants the Attorney
General, and any deputy or officer so designated by the Attorney General, a broad scope of
investigative powers. For example, a deputy or other officer designated by the Attorney General
may subpoena witnesses, compel their attendance, and examine them under oath. Id.
Pursuant to the Referral, the Attorney General deputized two partners at Vladeck and four
partners at Cleary Gottlieb as Special Deputies, and eight other lawyers at the Firms as Special
Assistants (the “Special Assistants”), to conduct the Investigation on behalf of the Attorney
General. See Decl. of Serena Longley (the “Longley Decl.”), ECF No. 225 ¶ 12. Pursuant to the
letters of appointment, the powers conferred to the Special Deputies and Special Assistants were
to be used “exclusively for the benefit of OAG and the People of the State of New York.” See
Longley Decl. ¶ 13; ECF No. 195 at Ex. 1. Pursuant to and consistent with Section 63(8), OAG
also retained the Firms to provide investigative and legal services by assisting with the
Investigation. The engagement letters provide that the Firms and their employees “shall
2
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communicate and provide services solely at the direction of [the First Deputy Attorney General]
on behalf of the Attorney General of the State of New York.” See Longley Decl. ¶ 16; ECF No.
195 at Ex. 2. All materials were to be treated as confidential and were not to be disclosed to any
other parties; the materials were to be either eventually returned to OAG by the Firms or
destroyed. See ECF No. 195 at Ex. 2.
Following publication of the OAG Investigation Report on August 3, 2021, various
lawsuits were filed against Cuomo, including the present action. As part of discovery here,
Defendant Cuomo served a nonparty subpoena on OAG seeking documents in connection with
the “Investigation,” defined as “the Office of the Attorney General’s Investigation into
allegations of sexual harassment by Governor Cuomo” (the “Investigation Materials”). See ECF
No. 195 at 1; ECF No. 200. Defendant Cuomo also served nonparty subpoenas on the Firms
seeking the same Investigation Materials. On February 23, 2024, Defendant Cuomo moved to
compel OAG’s compliance with the OAG Subpoena. See ECF No. 199. Defendant Cuomo
moved to compel the Firms’ compliance with the Firm Subpoenas on March 8, 2024. See ECF
No. 207. Defendant Cuomo concedes that the OAG Subpoena and Firm Subpoenas seek
“identical materials.” See ECF No. 192 at 1.
ARGUMENT
I. OAG is the Real Party in Interest for Purposes of Enforcing the Firm Subpoenas
A. The Investigation Materials Were Created or Collected By the Special Deputies
and Special Assistants in Their Official Capacity as State Actors
As OAG has explained, a motion to enforce a nonparty subpoena against a state actor is
coercive judicial process sufficient to trigger the state’s sovereign immunity. 2 See Felix v. Cnty.
of Nassau, 344 F.R.D. 441, 445 (E.D.N.Y. 2023) (“[W]hen the OAG is served with a third -party
2
See OAG Mem. at 7-9.
3
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subpoena, this is exactly the type of coercive judicial process that the Supreme Court cases seem
to envision being protected against by sovereign immunity”); U.S. EPA v. General Elec. Co., 197
F.3d 592 (2d Cir. 1999), amended on reh’g on other grounds, 212 F.3d 689 (2d Cir. 2000)
(affirming holding that enforcement of nonparty subpoena was a “judicial proceeding” “against
the sovereign” where the result could compel the Government to act). See also Russell v. Jones,
49 F.4th 507, 512 (5th Cir. 2022) (holding that sovereign immunity bars third -party subpoenas
served on state county district judges); Alltel Comm’ns, LLC v. DeJordy, 675 F.3d 1100, 1103
(8th Cir. 2012) (holding effort to compel compliance with a third-party subpoena triggered
immunity where it would “command a government unit to appear in federal court and obey . . .
judicial discovery commands”).
The immunity to suit enjoyed by OAG extends to the Special Deputies and Special
Assistants, who were empowered under New York law to step into the shoes of OAG and to
exercise OAG’s governmental investigative powers, including for example OAG’s power to
subpoena witnesses and conduct examinations under oath. N.Y. Exec. Law § 63(8); see also
ECF No. 195 at Ex. 1. Accordingly, the Special Deputies and Special Assistants functioned as
employees and officers of OAG—indeed, as state actors themselves—and not just as private
contractors or outside counsel, as Cuomo tries to claim. See, e.g., McGinty v. New York, 251
F.3d 84, 96 (2d Cir. 2001) (relying on holding that “the Retirement System is the kind of state
instrumentality” that bears state sovereign immunity regardless of fact that it also bears
privileges of a corporation) (quoting Glassman v. Glassman, 309 N.Y. 436, 441 (1956)).
Judge McMahon applied EPA to hold that a proceeding to enforce a nonparty subpoena
against an Indian tribe’s counsel triggered tribal sovereign immunity because “a tribe’s attorney,
when acting as a representative of the tribe and within the scope of his authority, is cloaked in
4
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the immunity of the tribe just as the tribal official is[.]” See Catskill Dev., LLC v. Park Place
Entertainment Corp., 206 F.R.D. 78, 87, 91 (S.D.N.Y. 2002). The facts here even more strongly
support extension of sovereign immunity to the Firms for purposes of the Motion to Compel.
Although information the Firms possess as “outside counsel” to OAG itself would be protected
under the court’s reasoning in Catskill, the Firm Subpoenas seek the Investigation Materials
themselves, created and collected by the Special Deputies and Special Assistants through the
invocation of OAG’s investigatory power. As state actors, these appointed attorneys and their
Firms must also enjoy the protections of sovereign immunity when it comes to judicial action
seeking to compel production of the Investigation Materials. See e.g., Boron Oil Co. v. Downie,
873 F.2d 67, 71 (4th Cir. 1989) (“The subpoena proceedings fall within the protection of
sovereign immunity even though they are technically against the federal employee and not
against the sovereign.”); Russell, 49 F.4th at 512 (finding that county judges were state officials
acting in official capacities and quashing third-party subpoenas due to sovereign immunity).3
Defendant Cuomo’s attempt to undermine Catskill by relying on Lewis v. Clarke, 581
U.S. 155 (2017) is inapt and misleading. The facts in Lewis, where plaintiffs sought damages
under 42 U.S.C. § 1983 in a negligence action arising from an Indian tribe member’s actions in
an individual capacity, id. at 164, provide no guidance here, where there is no allegation
whatsoever about the Firms’ attorneys’ individual conduct. While Lewis held that tribal
sovereign immunity did not extend to an individual action suit solely because the individual was
acting within the scope of his employment, id., the Court’s articulation of the relevant legal
3
Defendant Cuomo’s argument that the court in Catskill actually quashed the subpoenas based on attorney-client
privilege, as opposed to sovereign immunity, is disingenuous and wrong. Mem. of Law in Supp. of Mot. to Compel,
22-cv-07846-VSB-SLC, ECF No. 208 (“Cuomo Mem.”) at 8. The court simply agreed with cases holding that
refusing to recognize the sovereign immunity of counsel would jeopardize the tribe’s interests and could also
adversely affect counsel’s representation; it unquestionably found that a tribe’s sovereign immunity applied to a
tribe’s lawyer acting within the scope of his authority. Catskill, 206 F.R.D. at 91.
5
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principles are fully consistent with Catskill and to the extension of sovereign immunity to the
Firms. As the Court held, in the context of suits against state and federal employees, “courts
should look to whether the sovereign is the real party in interest . . . .” Id. at 162 (“If . . . an
action is in essence against a State even if the State is not a named party, then the State is the real
party in interest and is entitled to invoke the Eleventh Amendment’s protection. . . . [A]n arm or
instrumentality of the State generally enjoys the same immunity as the sovereign itself.”) .4
The Motion to Compel is plainly a suit where “the relief sought is only nominally against
the official and in fact is against the official’s office and thus the sovereign itself.” Id.
Defendant Cuomo seeks the exact same Investigation Materials from OAG. There is no
difference between the Court ordering OAG or the Firms to comply with duplicative subpoenas.
In either case, OAG will need to direct the Firms to review, redact and produce the responsive
materials and pay them accordingly. As this is not a suit against the Firms seeking a judgment
for injury caused by activities of the Firms, but rather an enforcement action seeking OAG
records, an “adverse judgment” will in essence legally bind OAG, compelling the state to act,
and cause OAG to “ultimately pick up the tab.” Id. at 165; see also E.P.A., 197 F.3d at 595. 5
Defendant Cuomo makes much of the First Circuit’s decision in U.S. Dep’t of Just. v.
Ricco Jonas, 24 F.4th 718, 727 (1st Cir. 2022), that an enforcement proceeding against an
agency’s custody of records does not involve a claim against the state. Cuomo Mem. at 3. Yet
4
For this reason, Cuomo’s reference to Del Campo v. Kennedy, 517 F.3d 1070, 1076 (9th Cir. 2008) and related
cases is inapposite, irrelevant and unnecessary to the Court’s analysis. See Cuomo Mem. at 6.
5
Defendant Cuomo’s attempt to characterize the relief sought as merely prospective relief akin to that in Ex parte
Young, 209 U.S. 123 (1908), Mem. at 2, 4, fares no better. Ex parte Young dealt with an injunction against an
ongoing violation of federal law and has no application to the Motion to Compel the Firms. See Papasan v. Allain,
478 U.S. 265, 277 (1986) (“Young’s applicability has been tailored to conform as precisely as possible to those
specific situations in which it is ‘necessary to permit the federal courts to vindicate federal rights and hold state
officials responsible to the supreme authority of the United States.’” ) (quoting Pennhurst State School and Hospital
v. Halderman, 465 U.S. 89, 105 (1984)). Simply put, the Ex parte Young “fiction” does not apply “when ‘the state
is the real, substantial party in interest.’” Virginia Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255 (2011). See
also OAG Mem. at 10.
6
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the reasoning in Ricco Jonas is inapposite and unpersuasive for several reasons, including that
the Firms are not the “custodians” of the records sought.6 Fundamentally, the court in Ricco
Jonas was guided by the concept that the production of documents in the state’s possession
“do[es] not compromise state sovereignty to a significant degree,” and that a judgement “against
the State” to produce documents would not have a “conceivable effect on [the State’s] treasury.”
Ricco Jonas, 24 F.4 th at 727. However, the impact on the state’s treasury is not the only
consideration. Felix, 344 F.R.D. at 444 (“[T]he doctrine obtains in all proceedings where the
result could be an order retraining the moving government entity or requiring it to act.” ) (citing
Dugan v. Rank, 372 U.S. 609, 620 (1963)). Where, as here, OAG is the real party in interest for
the nonparty subpoena, “this is exactly the type of coercive judicial process . . . protected against
by sovereign immunity[.]” Felix, 344 F.R.D. at 445. The citation to Ricco Jonas is no more than
another attempt to cite out of Circuit authority to argue that a nonparty discovery subpoena is not
a “suit” triggering sovereign immunity, despite Second Circuit caselaw holding otherwise.
Finally, Defendant Cuomo’s argument that the Firm Subpoenas should be enforceable
because they are directed at the “Firms” and not the “Special Deputies” as individuals is
illogical. Cuomo Mem. at 5. The proposition is a distinction without a difference. The Firms
have access to the Investigation Materials solely because attorneys at the Firms served as Special
Deputies and Special Assistants.7 The defenses that extend to them as state actors also extends
to the Firms where they are partners or otherwise employed. To find otherwise would create an
6
Similarly, the out-of-circuit cases that Defendant Cuomo alludes to are non-binding and not persuasive. See
Cuomo Mem. at 3 n.3; see also id. at 4.
7
The Firms’ engagement letters make it clear that the Firms were retained to assist OAG, using the Firms’
resources. See ECF No. 195 at Ex. 2 (“FIRM is authorized to utilize any of its resources as it deems appropriate to
carry out the Matter consistent with the Section 63(8) appointment letters and the scope of services as set forth
below.”). Further, under the Firms’ engagement letters, even prior to conclusion of the matter, the departure of the
Special Deputies from the Firms would trigger the Firms’ obligation to return or destroy the materials, underscoring
that the Firms’ activities and obligations—and its privileges—flow from OAG. See Felix, 344 F.R.D. at 444.
7
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untenable situation where the Attorney General could only deputize solo practitioners under
Section 63(8) to preserve the state’s sovereign immunity defense; such an absurd limitation on
this appointment power finds no support in the text of the statute.
B. The Investigation Materials are State Records in Custody and Control of OAG
Contrary to the assertions made by Defendant Cuomo, Cuomo Mem. at 6, while the
Firms currently maintain access to the requested materials, all of the Investigation Materials are
under the possession and control of OAG. “Control is defined not only as possession, but as the
legal right to obtain the documents requested upon demand.” Tiffany (NJ) LLC v. Qi Andrew,
276 F.R.D. 143, 147 (S.D.N.Y. 2011) (quoting Linde v. Arab Bank, PLC, 262 F.R.D. 136, 141
(E.D.N.Y.2009)), aff’d, 2011 WL 11562419 (S.D.N.Y. Nov. 14, 2011). The powers conferred to
the Special Deputies and Special Assistants used to create and collect the Investigation Materials
were to be used “exclusively for the benefit of the OAG and the People of the State of New
York.”8 See ECF No. 195 at Ex. 1. And as set forth in OAG’s engagement letters, all materials
were to be treated as confidential and not disclosed to any other party and eventually returned to
OAG by the Firms or destroyed. See ECF No. 195 at Ex. 2. Therefore, any order to compel
production of the Investigation Materials by the Firms will necessarily require OAG to authorize
the production of state records that OAG is otherwise protected from producing under sovereign
immunity. See United States v. 2121 Celeste Rd. SW, Albuquerque, N.M., 307 F.R.D. 572
(D.N.M. 2015) (finding that an FBI file was not in FBI agent’s “possession, custody, or control,”
where the agent did not appear to have the legal right or authority to obtain the file on demand,
given that to obtain the file, the agent would need to clear several layers of permission ); see also
Johnson v. Santini, 2015 WL 1806328, at *6 (D. Colo. Apr. 17, 2015) (“As subordinate federal
8
As noted, Section 63(8) confers significant powers on the Special Deputies and Special Assistants; indeed, t heir
subpoenas carry the weight of criminal penalties for failure to cooperate.
8
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employees acting pursuant to agency direction, [d]efendants cannot be required to release
information without authorization[.]”).
It is improper for Defendant Cuomo to compel the Firms to disclose OAG’s records that
the Firms may access but do not control, and which they are ethically and contractually bound to
protect and keep confidential. For this reason, irrespective of the Firms being the nominal
targets of the Firm Subpoenas, in any scenario, OAG will need to authorize and produce (or be
compelled to authorize and produce) the Investigation Materials that OAG ultimately controls,
despite the fact that a set of the Investigation Materials are physically housed at the Firms’
offices. The ability of the Firms to access the Investigation Materials is not dispositive, as these
state records have always been and remain under the custody and control of OAG, the real party
in interest here. See, e.g., MTB Bank v. Federal Armored Express, Inc., 1998 WL 43125, *4
(S.D.N.Y. Feb. 2, 1998) (“Under Fed. R. Civ. P. 34, . . . documents in the possession of a party’s
current or former counsel are deemed to be within that party’s possession, custody or control.”).
II. All Defenses Available to OAG Apply to the Investigation Materials in the Hands of the
Firms as Legal Counsel to OAG
If the Court finds that OAG is protected from enforcement of the OAG Subpoena due to
the defense of sovereign immunity, such protection necessarily extends to the Firms as counsel
to OAG. 9 It is uncontroversial that a client controls its files held by its counsel. See, e.g., Hake
v. Citibank, N.A., 2020 WL 1467132, at *6 (S.D.N.Y. Mar. 26, 2020) (“[A] company has
possession, custody, and control over its own documents, as well as documents in the possession
of its agents, such as attorneys . . . , who hold documents provided by and belonging to the
company.”).10 Critically, the Second Circuit has held that to the extent a client is privileged from
9
As Judge Merkl noted, the attempt to draw a line between the Firms and OAG on these exact facts and posture is a
“non-starter.” See Letter Opp’n dated Dec. 19, 2023, 22-cv-07846-VSB-SLC ECF No. 149 at 2 n.2
10
See also In re Grand Jury, 705 F.3d 133, 147 (3d Cir. 2012) (“Although the documents are in the physical
9
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producing documents, so too is the client’s counsel. See Kiobel by Samkalden v. Cravath,
Swaine & Moore, 895 F.3d 238, 246 (2d Cir. 2018) (reversing district court order compelling
law firm to provide client files); see also Fisher v. United States, 425 U.S. 391, 404 (1976)
(holding that where a client would be privileged from production due to common law or as
exempt from self-incrimination, the client’s counsel, where given the documents sought for
purposes of legal advice, is also privileged). In a footnote, Defendant Cuomo attempts to
disregard Kiobel by Samkalden by arguing that, because he disputes the assertions of privilege
and other objections, the case is inapplicable. Cuomo Mem. at 8. Yet Defendant Cuomo too
narrowly construes the privileges relevant to the Second Circuit’s holding.
The court in Felix, in granting OAG’s motion quash a subpoena seeking investigatory
materials, noted that under FRCP 45(d), a “subpoena must be quashed where it requires
‘disclosure of privileged or otherwise protected matter, if no exception or waiver applies.’”
Felix, 344 F.R.D. at 444 (quoting Fed. R. Civ. P. 45(d)(3)(A)(iii)). Specifically, the court held
that “[i]n other similar contexts, sovereign immunity has been the type of privilege or protection
applied to grant a motion to quash.” Id. (citing Catskill Dev., L.L.C. v. Park Place Entertainment
Corp., 206 F.R.D. 78 (S.D.N.Y. 2002)). Accordingly, if OAG may quash the subpoena due to
the defense of sovereign immunity, that same defense must protect OAG from compelling its
counsel to produce the very same Investigation Materials.
CONCLUSION
For the foregoing reasons, OAG and the Firms respectfully request that the Court deny
Defendant Cuomo’s Motion to Compel and grant their Cross-Motion to Quash the Firm
Subpoenas.
possession of Blank Rome, they are ABC Corp.’s documents and are under its legal control.”).
10
FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023
Case
NYSCEF DOC. NO. 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED
Page 15 of 15
NYSCEF: 04/10/2024
Dated: March 26, 2024 Respectfully submitted,
New York, New York
_______________________________
Serena Longley
Deputy General Counsel
Office of the New York State Attorney
General
28 Liberty St. New York, 10005
(212) 416-8178
Serena.Longley@ag.ny.gov
Attorney for Nonparty Office of the Attorney
General
_______________________________
Anne L. Clark
Vladeck, Raskin & Clark, P.C.
111 Broadway, Suite 1505
New York, New York 10006
aclark@vladeck.com
Attorney for Nonparty Vladeck, Raskin &
Clark, P.C.
/s/ Andrew Weaver
_______________________________
Andrew Weaver
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
(212) 225-2354
aweaver@cgsh.com
Attorney for Nonparty Cleary Gottlieb Steen
& Hamilton LLP
11
Preview
FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/10/2024 Exhibit K FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 NYSCEF DOC. NO.Case 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 1 ofNYSCEF: 15 04/10/2024 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CHARLOTTE BENNETT, Plaintiff, 22 Civ. 7846 (VSB) (SLC) v ANDREW M. CUOMO, MELISSA DEROSA, JILL DESROSIERS, and JUDITH MOGUL, Defendants. MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO COMPEL AND IN SUPPORT OF CROSS-MOTION TO QUASH SUBPOENA Serena Longley Deputy General Counsel Office of the New York State Attorney General 28 Liberty St. New York, 10005 (212) 416-8178 Serena.Longley@ag.ny.gov Anne L. Clark Vladeck, Raskin & Clark, P.C. 111 Broadway, Suite 1505 New York, New York 10006 aclark@vladeck.com Andrew Weaver Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 (212) 225-2354 aweaver@cgsh.com FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 NYSCEF DOC. NO.Case 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 2 ofNYSCEF: 15 04/10/2024 Table of Contents Table of Authorities ................................................................................................................... ii Preliminary Statement ................................................................................................................ 1 Background .............................................................................................................................. 2 Argument ................................................................................................................................. 3 I. OAG is the Real Party in Interest for Purposes of Enforcing the Firm Subpoenas ....................... 3 A. The Investigation Materials Were Created or Collected By the Special Deputies in Their Official Capacity as State Actors................................................................................ 3 B. The Investigation Materials are State Records in Custody and Control of OAG................. 8 II. All Defenses Available to OAG Apply to the Investigation Materials in the Hands of the Firms as Legal Counsel to OAG...................................................................................................... 9 Conclusion ..............................................................................................................................10 i FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 NYSCEF DOC. NO.Case 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 3 ofNYSCEF: 15 04/10/2024 TABLE OF AUTHORITIES Page(s) Rules and Statutes New York Executive Law § 63(8) ..................................................................................... 1, 2, 4, 7 Fed. R. Civ. P. 45 ........................................................................................................... 8, 10 Cases Alltel Comm’ns, LLC v. DeJordy, 675 F.3d 1100 (8th Cir. 2012) ........................................................................................... 4 Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir. 1989) .............................................................................................. 5 Catskill Dev., LLC v. Park Place Entertainment Corp., 206 F.R.D. 78 (S.D.N.Y. 2002) ......................................................................................... 4, 5, 6 Ex parte Young, 209 U.S. 123 (1908) ........................................................................................................ 6 Felix v. Cnty. of Nassau, 344 F.R.D. 441 (E.D.N.Y. 2023) ....................................................................................... 3, 7, 10 Fisher v. United States, 425 U.S. 391 (1976) ........................................................................................................ 10 Hake v. Citibank, N.A., 2020 WL 1467132 (S.D.N.Y. Mar. 26, 2020) ...................................................................... 9 In re Grand Jury, 705 F.3d 133 (3d Cir. 2012) ............................................................................................. 9 Johnson v. Santini, 2015 WL 1806328 (D. Colo. Apr. 17, 2015) ....................................................................... 8 Kiobel by Samkalden v. Cravath, Swaine & Moore, 895 F.3d 238 (2d Cir. 2018) ............................................................................................. 9 Lewis v. Clarke, 581 U.S. 155 (2017) ........................................................................................................ 5 McGinty v. New York, 251 F.3d 84 (2d Cir. 2001) ............................................................................................... 4 ii FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 NYSCEF DOC. NO.Case 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 4 ofNYSCEF: 15 04/10/2024 Papasan v. Allain, 478 U.S. 265 (1986) ........................................................................................................ 6 Russell v. Jones, 49 F.4th 507 (5th Cir. 2022) ............................................................................................. 4, 5 Tiffany (NJ) LLC v. Qi Andrew, 276 F.R.D. 143 (S.D.N.Y. 2011), aff’d, 2011 WL 11562419 (S.D.N.Y. Nov. 14, 2011) ............. 8 U.S. Dep’t of Just. v. Ricco Jonas, 24 F.4th 718 (1st Cir. 2022).............................................................................................. 6, 7 U.S. EPA v. General Elec. Co., 197 F.3d 592 (2d Cir. 1999), am. on reh’g on other grounds, 212 F.3d 689 (2d Cir. 2000) ......... 3, 6 United States v. 2121 Celeste Rd. SW, Albuquerque, N.M., 307 F.R.D. 572 (D.N.M. 2015) ......................................................................................... 8 Virginia Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247 (2011) ........................................................................................................ 6 iii FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 NYSCEF DOC. NO.Case 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 5 ofNYSCEF: 15 04/10/2024 PRELIMINARY STATEMENT To the extent this Court finds that the New York State Office of the Attorney General (the “OAG”) enjoys sovereign immunity in relation to the subpoena served on OAG (the “OAG Subpoena”), such immunity must also extend to the subpoenas served on the law firms OAG retained to carry out an N.Y. Executive Law § 63(8) investigation, Vladeck, Raskin & Clark, P.C. (“Vladeck”), and Cleary Gottlieb Steen & Hamilton LLP (“Cleary Gottlieb,” together with Vladeck, the “Firms”) (the “Firm Subpoenas”).1 Defendant Andrew Cuomo (“Cuomo”) cannot serve duplicative subpoenas on the Firms, seeking identical information sought from OAG, in order to subvert a decision by this Court that OAG is protected from enforcement of the OAG Subpoena on the basis of sovereign immunity. A contrary result would render OAG’s sovereign immunity meaningless. OAG is the real party in interest for purposes of the present motions, as the Firm Subpoenas exclusively seek state records under the control of and belonging to OAG, created and maintained by lawyers appointed as Special Deputies to the First Deputy Attorney General (the “Special Deputies”) under the authority of N.Y. Executive Law § 63(8). Sovereign immunity is designed to protect the dignity of the state from being compelled to act. An order compelling the Firms to comply with the Firm Subpoenas would result in the same actions and steps that would be taken if OAG was ordered by this Court to comply with the OAG Subpoena. Defendant Cuomo’s attempt to paint the Firms as purely private outside entities, or as “contractors,” “free” from any connection with the state, is misleading and ignores reality. 1 Pursuant to the Court’s direction, see Hrg. Tr. dated Feb. 26, 2024 at 29:16-30:4, attached as Ex. 1 to Decl. of Andrew Weaver dated Mar. 26, 2024, the only issue to be briefed with respect to the Firm Subpoenas is whether the Firms may invoke the same sovereign immunity defense as OAG as the parties agree that all other defenses and objections to the Firm Subpoenas that the Firms would otherwise assert are the same as those raised by OAG in connection with the OAG Subpoena and will be addressed in connection with the parallel motion by Defendant Cuomo to compel OAG and in support of OAG’s cross-motion to quash. See OAG Mem. of Law in Supp. of Cross- Mot. to Quash and Opp’n to Mot. to Compel (“OAG Mem.”), ECF No. 223. 1 FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 NYSCEF DOC. NO.Case 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 6 ofNYSCEF: 15 04/10/2024 Moreover, it is black letter law that any defense enjoyed by OAG regarding its documents and materials must necessarily apply to those same materials held by the Firms as counsel to OAG. Defendant Cuomo’s effort to make an end run around OAG’s sovereign immunity is not supported by the facts here or the applicable law and should be rejected. BACKGROUND On March 1, 2021, then-Governor Cuomo made a referral pursuant to N.Y. Executive Law § 63(8) (“Section 63(8)”) for the New York State Attorney General, Letitia James, to select independent lawyers to investigate “allegations of and circumstances surrounding sexual harassment claims made against the Governor” (the “Referral”). See ECF No. 195 at 1 n.1. Section 63(8) permits the Attorney General, with the approval of the Governor and when directed by the Governor, to “inquire into matters concerning the public peace, public safety and public justice” (the “Investigation”). See Section 63(8). Section 63(8) grants the Attorney General, and any deputy or officer so designated by the Attorney General, a broad scope of investigative powers. For example, a deputy or other officer designated by the Attorney General may subpoena witnesses, compel their attendance, and examine them under oath. Id. Pursuant to the Referral, the Attorney General deputized two partners at Vladeck and four partners at Cleary Gottlieb as Special Deputies, and eight other lawyers at the Firms as Special Assistants (the “Special Assistants”), to conduct the Investigation on behalf of the Attorney General. See Decl. of Serena Longley (the “Longley Decl.”), ECF No. 225 ¶ 12. Pursuant to the letters of appointment, the powers conferred to the Special Deputies and Special Assistants were to be used “exclusively for the benefit of OAG and the People of the State of New York.” See Longley Decl. ¶ 13; ECF No. 195 at Ex. 1. Pursuant to and consistent with Section 63(8), OAG also retained the Firms to provide investigative and legal services by assisting with the Investigation. The engagement letters provide that the Firms and their employees “shall 2 FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 NYSCEF DOC. NO.Case 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 7 ofNYSCEF: 15 04/10/2024 communicate and provide services solely at the direction of [the First Deputy Attorney General] on behalf of the Attorney General of the State of New York.” See Longley Decl. ¶ 16; ECF No. 195 at Ex. 2. All materials were to be treated as confidential and were not to be disclosed to any other parties; the materials were to be either eventually returned to OAG by the Firms or destroyed. See ECF No. 195 at Ex. 2. Following publication of the OAG Investigation Report on August 3, 2021, various lawsuits were filed against Cuomo, including the present action. As part of discovery here, Defendant Cuomo served a nonparty subpoena on OAG seeking documents in connection with the “Investigation,” defined as “the Office of the Attorney General’s Investigation into allegations of sexual harassment by Governor Cuomo” (the “Investigation Materials”). See ECF No. 195 at 1; ECF No. 200. Defendant Cuomo also served nonparty subpoenas on the Firms seeking the same Investigation Materials. On February 23, 2024, Defendant Cuomo moved to compel OAG’s compliance with the OAG Subpoena. See ECF No. 199. Defendant Cuomo moved to compel the Firms’ compliance with the Firm Subpoenas on March 8, 2024. See ECF No. 207. Defendant Cuomo concedes that the OAG Subpoena and Firm Subpoenas seek “identical materials.” See ECF No. 192 at 1. ARGUMENT I. OAG is the Real Party in Interest for Purposes of Enforcing the Firm Subpoenas A. The Investigation Materials Were Created or Collected By the Special Deputies and Special Assistants in Their Official Capacity as State Actors As OAG has explained, a motion to enforce a nonparty subpoena against a state actor is coercive judicial process sufficient to trigger the state’s sovereign immunity. 2 See Felix v. Cnty. of Nassau, 344 F.R.D. 441, 445 (E.D.N.Y. 2023) (“[W]hen the OAG is served with a third -party 2 See OAG Mem. at 7-9. 3 FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 NYSCEF DOC. NO.Case 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 8 ofNYSCEF: 15 04/10/2024 subpoena, this is exactly the type of coercive judicial process that the Supreme Court cases seem to envision being protected against by sovereign immunity”); U.S. EPA v. General Elec. Co., 197 F.3d 592 (2d Cir. 1999), amended on reh’g on other grounds, 212 F.3d 689 (2d Cir. 2000) (affirming holding that enforcement of nonparty subpoena was a “judicial proceeding” “against the sovereign” where the result could compel the Government to act). See also Russell v. Jones, 49 F.4th 507, 512 (5th Cir. 2022) (holding that sovereign immunity bars third -party subpoenas served on state county district judges); Alltel Comm’ns, LLC v. DeJordy, 675 F.3d 1100, 1103 (8th Cir. 2012) (holding effort to compel compliance with a third-party subpoena triggered immunity where it would “command a government unit to appear in federal court and obey . . . judicial discovery commands”). The immunity to suit enjoyed by OAG extends to the Special Deputies and Special Assistants, who were empowered under New York law to step into the shoes of OAG and to exercise OAG’s governmental investigative powers, including for example OAG’s power to subpoena witnesses and conduct examinations under oath. N.Y. Exec. Law § 63(8); see also ECF No. 195 at Ex. 1. Accordingly, the Special Deputies and Special Assistants functioned as employees and officers of OAG—indeed, as state actors themselves—and not just as private contractors or outside counsel, as Cuomo tries to claim. See, e.g., McGinty v. New York, 251 F.3d 84, 96 (2d Cir. 2001) (relying on holding that “the Retirement System is the kind of state instrumentality” that bears state sovereign immunity regardless of fact that it also bears privileges of a corporation) (quoting Glassman v. Glassman, 309 N.Y. 436, 441 (1956)). Judge McMahon applied EPA to hold that a proceeding to enforce a nonparty subpoena against an Indian tribe’s counsel triggered tribal sovereign immunity because “a tribe’s attorney, when acting as a representative of the tribe and within the scope of his authority, is cloaked in 4 FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 NYSCEF DOC. NO.Case 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 9 ofNYSCEF: 15 04/10/2024 the immunity of the tribe just as the tribal official is[.]” See Catskill Dev., LLC v. Park Place Entertainment Corp., 206 F.R.D. 78, 87, 91 (S.D.N.Y. 2002). The facts here even more strongly support extension of sovereign immunity to the Firms for purposes of the Motion to Compel. Although information the Firms possess as “outside counsel” to OAG itself would be protected under the court’s reasoning in Catskill, the Firm Subpoenas seek the Investigation Materials themselves, created and collected by the Special Deputies and Special Assistants through the invocation of OAG’s investigatory power. As state actors, these appointed attorneys and their Firms must also enjoy the protections of sovereign immunity when it comes to judicial action seeking to compel production of the Investigation Materials. See e.g., Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th Cir. 1989) (“The subpoena proceedings fall within the protection of sovereign immunity even though they are technically against the federal employee and not against the sovereign.”); Russell, 49 F.4th at 512 (finding that county judges were state officials acting in official capacities and quashing third-party subpoenas due to sovereign immunity).3 Defendant Cuomo’s attempt to undermine Catskill by relying on Lewis v. Clarke, 581 U.S. 155 (2017) is inapt and misleading. The facts in Lewis, where plaintiffs sought damages under 42 U.S.C. § 1983 in a negligence action arising from an Indian tribe member’s actions in an individual capacity, id. at 164, provide no guidance here, where there is no allegation whatsoever about the Firms’ attorneys’ individual conduct. While Lewis held that tribal sovereign immunity did not extend to an individual action suit solely because the individual was acting within the scope of his employment, id., the Court’s articulation of the relevant legal 3 Defendant Cuomo’s argument that the court in Catskill actually quashed the subpoenas based on attorney-client privilege, as opposed to sovereign immunity, is disingenuous and wrong. Mem. of Law in Supp. of Mot. to Compel, 22-cv-07846-VSB-SLC, ECF No. 208 (“Cuomo Mem.”) at 8. The court simply agreed with cases holding that refusing to recognize the sovereign immunity of counsel would jeopardize the tribe’s interests and could also adversely affect counsel’s representation; it unquestionably found that a tribe’s sovereign immunity applied to a tribe’s lawyer acting within the scope of his authority. Catskill, 206 F.R.D. at 91. 5 FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 Case NYSCEF DOC. NO. 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 10 of 15 NYSCEF: 04/10/2024 principles are fully consistent with Catskill and to the extension of sovereign immunity to the Firms. As the Court held, in the context of suits against state and federal employees, “courts should look to whether the sovereign is the real party in interest . . . .” Id. at 162 (“If . . . an action is in essence against a State even if the State is not a named party, then the State is the real party in interest and is entitled to invoke the Eleventh Amendment’s protection. . . . [A]n arm or instrumentality of the State generally enjoys the same immunity as the sovereign itself.”) .4 The Motion to Compel is plainly a suit where “the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself.” Id. Defendant Cuomo seeks the exact same Investigation Materials from OAG. There is no difference between the Court ordering OAG or the Firms to comply with duplicative subpoenas. In either case, OAG will need to direct the Firms to review, redact and produce the responsive materials and pay them accordingly. As this is not a suit against the Firms seeking a judgment for injury caused by activities of the Firms, but rather an enforcement action seeking OAG records, an “adverse judgment” will in essence legally bind OAG, compelling the state to act, and cause OAG to “ultimately pick up the tab.” Id. at 165; see also E.P.A., 197 F.3d at 595. 5 Defendant Cuomo makes much of the First Circuit’s decision in U.S. Dep’t of Just. v. Ricco Jonas, 24 F.4th 718, 727 (1st Cir. 2022), that an enforcement proceeding against an agency’s custody of records does not involve a claim against the state. Cuomo Mem. at 3. Yet 4 For this reason, Cuomo’s reference to Del Campo v. Kennedy, 517 F.3d 1070, 1076 (9th Cir. 2008) and related cases is inapposite, irrelevant and unnecessary to the Court’s analysis. See Cuomo Mem. at 6. 5 Defendant Cuomo’s attempt to characterize the relief sought as merely prospective relief akin to that in Ex parte Young, 209 U.S. 123 (1908), Mem. at 2, 4, fares no better. Ex parte Young dealt with an injunction against an ongoing violation of federal law and has no application to the Motion to Compel the Firms. See Papasan v. Allain, 478 U.S. 265, 277 (1986) (“Young’s applicability has been tailored to conform as precisely as possible to those specific situations in which it is ‘necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to the supreme authority of the United States.’” ) (quoting Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 105 (1984)). Simply put, the Ex parte Young “fiction” does not apply “when ‘the state is the real, substantial party in interest.’” Virginia Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255 (2011). See also OAG Mem. at 10. 6 FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 Case NYSCEF DOC. NO. 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 11 of 15 NYSCEF: 04/10/2024 the reasoning in Ricco Jonas is inapposite and unpersuasive for several reasons, including that the Firms are not the “custodians” of the records sought.6 Fundamentally, the court in Ricco Jonas was guided by the concept that the production of documents in the state’s possession “do[es] not compromise state sovereignty to a significant degree,” and that a judgement “against the State” to produce documents would not have a “conceivable effect on [the State’s] treasury.” Ricco Jonas, 24 F.4 th at 727. However, the impact on the state’s treasury is not the only consideration. Felix, 344 F.R.D. at 444 (“[T]he doctrine obtains in all proceedings where the result could be an order retraining the moving government entity or requiring it to act.” ) (citing Dugan v. Rank, 372 U.S. 609, 620 (1963)). Where, as here, OAG is the real party in interest for the nonparty subpoena, “this is exactly the type of coercive judicial process . . . protected against by sovereign immunity[.]” Felix, 344 F.R.D. at 445. The citation to Ricco Jonas is no more than another attempt to cite out of Circuit authority to argue that a nonparty discovery subpoena is not a “suit” triggering sovereign immunity, despite Second Circuit caselaw holding otherwise. Finally, Defendant Cuomo’s argument that the Firm Subpoenas should be enforceable because they are directed at the “Firms” and not the “Special Deputies” as individuals is illogical. Cuomo Mem. at 5. The proposition is a distinction without a difference. The Firms have access to the Investigation Materials solely because attorneys at the Firms served as Special Deputies and Special Assistants.7 The defenses that extend to them as state actors also extends to the Firms where they are partners or otherwise employed. To find otherwise would create an 6 Similarly, the out-of-circuit cases that Defendant Cuomo alludes to are non-binding and not persuasive. See Cuomo Mem. at 3 n.3; see also id. at 4. 7 The Firms’ engagement letters make it clear that the Firms were retained to assist OAG, using the Firms’ resources. See ECF No. 195 at Ex. 2 (“FIRM is authorized to utilize any of its resources as it deems appropriate to carry out the Matter consistent with the Section 63(8) appointment letters and the scope of services as set forth below.”). Further, under the Firms’ engagement letters, even prior to conclusion of the matter, the departure of the Special Deputies from the Firms would trigger the Firms’ obligation to return or destroy the materials, underscoring that the Firms’ activities and obligations—and its privileges—flow from OAG. See Felix, 344 F.R.D. at 444. 7 FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 Case NYSCEF DOC. NO. 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 12 of 15 NYSCEF: 04/10/2024 untenable situation where the Attorney General could only deputize solo practitioners under Section 63(8) to preserve the state’s sovereign immunity defense; such an absurd limitation on this appointment power finds no support in the text of the statute. B. The Investigation Materials are State Records in Custody and Control of OAG Contrary to the assertions made by Defendant Cuomo, Cuomo Mem. at 6, while the Firms currently maintain access to the requested materials, all of the Investigation Materials are under the possession and control of OAG. “Control is defined not only as possession, but as the legal right to obtain the documents requested upon demand.” Tiffany (NJ) LLC v. Qi Andrew, 276 F.R.D. 143, 147 (S.D.N.Y. 2011) (quoting Linde v. Arab Bank, PLC, 262 F.R.D. 136, 141 (E.D.N.Y.2009)), aff’d, 2011 WL 11562419 (S.D.N.Y. Nov. 14, 2011). The powers conferred to the Special Deputies and Special Assistants used to create and collect the Investigation Materials were to be used “exclusively for the benefit of the OAG and the People of the State of New York.”8 See ECF No. 195 at Ex. 1. And as set forth in OAG’s engagement letters, all materials were to be treated as confidential and not disclosed to any other party and eventually returned to OAG by the Firms or destroyed. See ECF No. 195 at Ex. 2. Therefore, any order to compel production of the Investigation Materials by the Firms will necessarily require OAG to authorize the production of state records that OAG is otherwise protected from producing under sovereign immunity. See United States v. 2121 Celeste Rd. SW, Albuquerque, N.M., 307 F.R.D. 572 (D.N.M. 2015) (finding that an FBI file was not in FBI agent’s “possession, custody, or control,” where the agent did not appear to have the legal right or authority to obtain the file on demand, given that to obtain the file, the agent would need to clear several layers of permission ); see also Johnson v. Santini, 2015 WL 1806328, at *6 (D. Colo. Apr. 17, 2015) (“As subordinate federal 8 As noted, Section 63(8) confers significant powers on the Special Deputies and Special Assistants; indeed, t heir subpoenas carry the weight of criminal penalties for failure to cooperate. 8 FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 Case NYSCEF DOC. NO. 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 13 of 15 NYSCEF: 04/10/2024 employees acting pursuant to agency direction, [d]efendants cannot be required to release information without authorization[.]”). It is improper for Defendant Cuomo to compel the Firms to disclose OAG’s records that the Firms may access but do not control, and which they are ethically and contractually bound to protect and keep confidential. For this reason, irrespective of the Firms being the nominal targets of the Firm Subpoenas, in any scenario, OAG will need to authorize and produce (or be compelled to authorize and produce) the Investigation Materials that OAG ultimately controls, despite the fact that a set of the Investigation Materials are physically housed at the Firms’ offices. The ability of the Firms to access the Investigation Materials is not dispositive, as these state records have always been and remain under the custody and control of OAG, the real party in interest here. See, e.g., MTB Bank v. Federal Armored Express, Inc., 1998 WL 43125, *4 (S.D.N.Y. Feb. 2, 1998) (“Under Fed. R. Civ. P. 34, . . . documents in the possession of a party’s current or former counsel are deemed to be within that party’s possession, custody or control.”). II. All Defenses Available to OAG Apply to the Investigation Materials in the Hands of the Firms as Legal Counsel to OAG If the Court finds that OAG is protected from enforcement of the OAG Subpoena due to the defense of sovereign immunity, such protection necessarily extends to the Firms as counsel to OAG. 9 It is uncontroversial that a client controls its files held by its counsel. See, e.g., Hake v. Citibank, N.A., 2020 WL 1467132, at *6 (S.D.N.Y. Mar. 26, 2020) (“[A] company has possession, custody, and control over its own documents, as well as documents in the possession of its agents, such as attorneys . . . , who hold documents provided by and belonging to the company.”).10 Critically, the Second Circuit has held that to the extent a client is privileged from 9 As Judge Merkl noted, the attempt to draw a line between the Firms and OAG on these exact facts and posture is a “non-starter.” See Letter Opp’n dated Dec. 19, 2023, 22-cv-07846-VSB-SLC ECF No. 149 at 2 n.2 10 See also In re Grand Jury, 705 F.3d 133, 147 (3d Cir. 2012) (“Although the documents are in the physical 9 FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 Case NYSCEF DOC. NO. 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 14 of 15 NYSCEF: 04/10/2024 producing documents, so too is the client’s counsel. See Kiobel by Samkalden v. Cravath, Swaine & Moore, 895 F.3d 238, 246 (2d Cir. 2018) (reversing district court order compelling law firm to provide client files); see also Fisher v. United States, 425 U.S. 391, 404 (1976) (holding that where a client would be privileged from production due to common law or as exempt from self-incrimination, the client’s counsel, where given the documents sought for purposes of legal advice, is also privileged). In a footnote, Defendant Cuomo attempts to disregard Kiobel by Samkalden by arguing that, because he disputes the assertions of privilege and other objections, the case is inapplicable. Cuomo Mem. at 8. Yet Defendant Cuomo too narrowly construes the privileges relevant to the Second Circuit’s holding. The court in Felix, in granting OAG’s motion quash a subpoena seeking investigatory materials, noted that under FRCP 45(d), a “subpoena must be quashed where it requires ‘disclosure of privileged or otherwise protected matter, if no exception or waiver applies.’” Felix, 344 F.R.D. at 444 (quoting Fed. R. Civ. P. 45(d)(3)(A)(iii)). Specifically, the court held that “[i]n other similar contexts, sovereign immunity has been the type of privilege or protection applied to grant a motion to quash.” Id. (citing Catskill Dev., L.L.C. v. Park Place Entertainment Corp., 206 F.R.D. 78 (S.D.N.Y. 2002)). Accordingly, if OAG may quash the subpoena due to the defense of sovereign immunity, that same defense must protect OAG from compelling its counsel to produce the very same Investigation Materials. CONCLUSION For the foregoing reasons, OAG and the Firms respectfully request that the Court deny Defendant Cuomo’s Motion to Compel and grant their Cross-Motion to Quash the Firm Subpoenas. possession of Blank Rome, they are ABC Corp.’s documents and are under its legal control.”). 10 FILED: NEW YORK COUNTY CLERK 04/10/2024 02:48 PM INDEX NO. 152438/2023 Case NYSCEF DOC. NO. 25 1:22-cv-07846-VSB-SLC Document 229 Filed 03/26/24 RECEIVED Page 15 of 15 NYSCEF: 04/10/2024 Dated: March 26, 2024 Respectfully submitted, New York, New York _______________________________ Serena Longley Deputy General Counsel Office of the New York State Attorney General 28 Liberty St. New York, 10005 (212) 416-8178 Serena.Longley@ag.ny.gov Attorney for Nonparty Office of the Attorney General _______________________________ Anne L. Clark Vladeck, Raskin & Clark, P.C. 111 Broadway, Suite 1505 New York, New York 10006 aclark@vladeck.com Attorney for Nonparty Vladeck, Raskin & Clark, P.C. /s/ Andrew Weaver _______________________________ Andrew Weaver Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 (212) 225-2354 aweaver@cgsh.com Attorney for Nonparty Cleary Gottlieb Steen & Hamilton LLP 11