Discovery Limits Set in Wiretapped Ex-Prosecutor’s Lawsuit

A former Brooklyn prosecutor who was illegally wiretapped by a supervisor has convinced a federal judge to limit access to the intercepted communications in a civil suit against her former employer and colleagues.

The plaintiff, Stephanie Rosenfeld, was the victim of a wiretapping operation that landed former Brooklyn assistant district attorney Tara Lenich in prison.

Lenich forged judges’ signatures on wiretap orders she used to conduct 16 months of surveillance on Rosenfeld and an NYPD detective.

The scandal got Lenich disbarred and incarcerated for a year. And it became tabloid fodder when it emerged that Lenich set up the wiretaps because she had dated the detective and believed Rosenfeld had an affair with him.

In December, Rosenfeld filed this lawsuit—in the U.S. District Court for the Eastern District of New York—against Lenich, the City of New York, the Brooklyn DA’s office and several former colleagues.

Discovery has been contentious, and Rosenfeld objected to requests to give the defendants access to the illegally wiretapped conversations.

In a June 14 order, U.S. Magistrate Judge Peggy Kuo implicitly acknowledged those concerns by asking defense attorneys to identify everyone who will have access to the communications.

‘A Very Unusual Case’

Lenich concealed her wiretapping scheme by lying to colleagues in the Brooklyn DA’s office, “telling them that she was conducting a highly sensitive, confidential criminal investigation,” federal prosecutors said.

Rosenfeld’s amended complaint says those defendants enabled Lenich’s wiretapping “through their lack of supervision and tacit approval.” The complaint says Lenich “was the subject of multiple EEOC complaints” that should have alerted supervisors to monitor her more closely.

The EEOC complaints “detailed erratic behavior, including barging into rooms, kicking open doors, and calling colleagues names,” and resulted in Lenich being forced “to undergo sensitivity training,” the lawsuit says.

Rosenfeld’s lawsuit alleges the defendants violated the federal Electronic Communications Privacy Act, and Rosenfeld’s Fourth and Fourteenth Amendment rights.

The complaint says the defendants did so when they gave the wiretapped communications to federal authorities who investigated Lenich—and to a state judge who wanted to determine whether the communications contained exculpatory material that should be turned over to a defendant in an unrelated case.

In May, the city defendants asked U.S. District Judge Nicholas G. Garaufis to limit initial discovery because many claims were unlikely to survive a motion to dismiss.

Rosenfeld’s attorney, Richard D. Emery, objected to that request. He said there were “unknown, unnamed victims of these wiretaps” who may have claims against the defendants—and that discovery must go forward because the statute of limitations may run out on those persons.

“This could turn into a class action,” Emery said at a May 24 hearing.

Defense counsel Joshua J. Lax told Garaufis that many of the claims were unlikely to survive a motion to dismiss.

“I will just point out one thing; the plaintiff is seeking money damages from a law enforcement agency for cooperating in the prosecution of her victimizer,” Lax said.

“Well, that sounds pretty outlandish, I will admit,” Garaufis said. “[B]ut this whole situation sounds pretty outlandish to me and if there is a question of the statute of limitations running, I do not think I would allow that to happen knowingly on my part just because a motion is being made.”

Plaintiffs’ counsel “needs to properly pursue any claims and not be up against the statute of limitations is important,” Garaufis told the defense lawyers. “It may be that you are absolutely right on many or all of your objections, but this is a very unusual case.”

Scope of Discovery

Garaufis tasked Kuo with establishing the scope of “some limited discovery” so the court could “narrow down the litigation.”

But in a June 6 letter, the parties told Kuo they had “a fundamental disagreement as to the permissible scope” of initial discovery.

The city defendants asked Kuo to give them and their lawyers to the entire file in the criminal case against Lenich—including all of the conversations captured through the illegal wiretaps.

Rosenfeld objected, saying that was an “unnecessarily broad” request.

“The disclosure of Plaintiff’s communications among [the Brooklyn DA’s office] employees is what gives rise to some of Plaintiff’s claims in this case,” Emery wrote. “Now, the City Defendants ask the Court to sanction that disclosure by giving all [Brooklyn DA’s office] employees access to Plaintiff’s communications.”

Emery said only the defense attorneys who have appeared in this case need to have access to those communications.

Limited Distribution

In her June 14 order—reflected in the docket but not reduced to writing—Kuo told the city defendants to file a revised proposal “listing the names of the individuals who will have access to the communications at issue.”

Lax submitted that revised proposed order on June 18. It identified two people in the Brooklyn DA’s office—the chief information officer and head of the civil litigation unit—and three senior attorneys in the NYC Office of the Corporation Counsel, which is defending the municipal defendants.

Emery Celli Brinckerhoff & Abady LLP represents Rosenfeld. The city defendants are represented by the NYC Office of the Corporation Counsel. Lenich is represented by Creizman LLC and Wilson Sonsini Goodrich & Rosati P.C.

The case is Rosenfeld v. Lenich, et al., E.D.N.Y., 1:17-cv-07299-NGG-PK.