Over the objections of lawyers for New York City, the opinion of a plaintiff's expert witness who refused to hand over data to the city on the basis of attorney-client privilege may be submitted in a suit brought by a transgender lesbian who claims her civil rights were violated during her arrest at the 2004 Republican National Convention.

In denying the city's request to preclude the testimony of Dean Spade, an assistant professor at Seattle University School of Law and a founder of the Sylvia Rivera Law Project, a civil rights organization, Southern District Magistrate Judge James Francis IV ruled last week that the information at issue was "plainly protected by the attorney-client privilege" and that the data sought by the city provided only a single basis for Mr. Spade's opinions.

Magistrate Judge Francis, in Tikkun v. City of New York, 05-cv-9901, found "there can be no presumption that the studies were undertaken with a bias based on any interest in this case, and there is therefore less need to breach the privilege to permit an exhaustive review of the underlying data."

The Southern District decision appears on page 32 of the print edition of today's Law Journal.

The Tikkun case is one of a series of lawsuits filed by about 600 plaintiffs against the city that arose following the Republican National Convention in August 2004. Today, 53 cases featuring about 500 plaintiffs remain pending, according to Celeste Koeleveld, executive assistant corporation counsel for public safety. About 100 plaintiffs have settled for a total of $1.5 million.

Kaitlyn Tikkun, like plaintiffs in the other cases, argues she was falsely arrested by the New York City Police Department and that her First Amendment rights were violated. But Ms. Tikkun, a transgender lesbian, also argues that the city, the police and the Department of Corrections violated her rights through policies and practices that subject transgender people to invasive searches to determine their genital status.
Ms. Tikkun's lawyers lined up as an expert Mr. Spade, who both established and worked as a staff attorney at Sylvia Rivera Law Project in Manhattan, which focuses on representing transgender, intersex or gender non-conforming people.

In his expert report, Mr. Spade said that city agencies needed to develop "clear and specific policies addressing the treatment of transgender individuals, particularly in the context of sex segregated facilities" and that the lack of such policies contributed to violation of the constitutional rights of transgender people.

Mr. Spade said New York City's policies at the time of the convention were inadequate. In support of his opinion, he noted that in 2004, he had testified before the New York City Equal Opportunity Commission that 58 percent of the cases that came to Sylvia Rivera involved sex-segregated facilities.

During depositions, the city's lawyers questioned the basis of Mr. Spade's opinions. He answered that his research was "primarily qualitative," but that some of it was quantitative, including raw data to which he had access to through the project's database.

Mr. Spade described the information as "intake data from every client that has come to that organization seeking legal service about their complaints, their personal needs, and issues." In addition, Mr. Spade said he reviewed reports by other organizations, such as Amnesty International, and interviewed other service providers and agencies in New York that collect data.

The Corporation Counsel then requested production of the data, but Andrea J. Ritchie, Ms. Tikkun's lawyer, objected, arguing the information was protected by attorney-client privilege. The city then moved to preclude Mr. Spade's testimony. Meanwhile, Mr. Spade, during briefing on the motion, removed from his expert report the reference to having testified on a specific percentage of cases involving sex-segregated facilities. The city argued that under the Federal Rules of Civil Procedure, Ms. Tikkun's lawyers could not block disclosure of the data on the basis of privilege.

Magistrate Judge Francis began his analysis by noting that the information at issue is protected by the attorney-client privilege as it was based on communications between Sylvia Rivera attorneys and the clients who were seeking advice from them. In this case, he said, no attorney-client privilege was waived as Ms. Tikkun did not provide Mr. Spade the privileged material and the data was collected before the current litigation. Magistrate Judge Francis added that it was not necessary for "every jot of information" to be disclosed. Mr. Spade also relied on reports from other organizations, as well as public hearing testimony.

"To be sure, those reports themselves may ultimately be based on an aggregation of privileged communications, but the defendants have always been free to explore the methodology that any of these groups used to reach the conclusions that Professor Spade relied upon in turn," Magistrate Judge Francis wrote.

Since Mr. Spade made his observations independent of the litigation, Magistrate Judge Francis said, "there can be no presumption that the studies were undertaken with a bias" toward a party in this case. The magistrate judge also denied the city's motion for costs associated with taking Mr. Spade's deposition. 

Ms. Ritchie of Brooklyn did not respond to requests for comment.
Assistant Corporation Counsel Gerald S. Smith represented the city, which declined comment.

@|Nate Raymond can be reached at nraymond [at] alm [dot] com.