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NEW YORK — More than 30 lawyers pressing civil rights damage cases stemming from the 2004 Republican National Convention do not, for the time being, have to file sworn statements disavowing any knowledge about the claimed leaking to The New York Times of “intelligence documents” that were under court seal, a federal magistrate judge has ruled. Southern District Magistrate Judge James C. Francis IV said that New York City had not produced enough evidence to establish that the plaintiffs’ lawyers gave the sealed documents to the Times. But he also ruled that if the city presented a comprehensive set of sworn declarations from all of its own employees who had access to the documents, he would reconsider ordering similar statements from plaintiffs’ lawyers. Before the city “will be permitted to shift to plaintiffs’ counsel the burden of demonstrating their innocence,” Magistrate Judge Francis wrote, “the defendants must show that they themselves were without fault.” Asked if the city intended to gather statements from its employees, the city’s lead lawyer, Senior Counsel Peter Farrell, said only, “We are reviewing the decision and weighing our legal options.” The city has the option of appealing the ruling to Southern District Judge Kenneth Karas, to whom the convention cases have been assigned. Christopher Dunn, of the New York Civil Liberties Union, who is representing the seven plaintiffs, denied in an interview being the source of the leak or knowing who was. “While the leak may have embarrassed the city, it has no reason to accuse us or any other convention counsel of misconduct,” he added. The plaintiffs are claiming that their First Amendment rights were violated because the city required arrests and fingerprints for even the most minor violations, policies that had the effect of keeping protestors off the streets during the four-day convention. The city has defended its no-summons policy as justified by what it had learned through pre-convention intelligence-gathering activities about the protestors’ intent to disrupt the convention. City lawyers sought the order requiring disclaimers from plaintiffs’ lawyers after a March 25 article in the Times reporting that undercover police officers had placed many groups with no intention of disrupting the convention under surveillance. The city claimed the article had been based on 600 pages of intelligence information that city lawyers had turned over to the plaintiffs as a part of the discovery in the convention cases. City lawyers had designated the 600 pages of documents as covered by a protective order that had been issued at the outset of the litigation. In addition, at the time the documents were given to the plaintiffs in January, Magistrate Judge Francis had, at the city’s request, designated the materials as for “attorneys’ eyes only.” About seven weeks after the Times article was published, Magistrate Judge Francis lifted the confidentiality order and ruled that the release of the documents to the public would not prejudice the city in the litigation. �RAW INTELLIGENCE’ The Times article, which was headlined “City Police Spied Broadly Before GOP Convention,” stated that it was based on “a sample of raw intelligence documents and on a summary digests of observations from both the field and the department’s cyberintelligence unit.” The article also suggested that the “raw intelligence documents” that reporter James Dwyer had reviewed were DD5 forms, which are filed daily by undercover officers in the field. While police department “summaries” were included in the 600 pages of intelligence documents given to plaintiffs’ lawyers, Dunn said, the conclusion that a plaintiff’s lawyer had given the documents to the Times was based upon “surmise.” At least a portion of the documents had to have come from inside the New York Police Department, Dunn added, because no DD5 forms had been given to the plaintiffs. In response to a request from Magistrate Judge Francis about the source of its documents, the Times advised the court that the “raw intelligence” documents in its possession bore “no stamp” indicating that they had been provided in discovery. Magistrate Judge Francis also made note of an opinion article in The Wall Street Journal in which the writer stated that she had reviewed “600-plus pages of still-secret intelligence documents” and made reference to “raw intelligence files.” A FAMILIAR BYLINE The article, by former New York Times reporter Judith Miller, who testified in the perjury trial of I. Lewis “Scooter” Libby, Vice President Dick Cheney’s former chief of staff, was headlined “When Activists are Terrorists.” Finding no direct evidence that the plaintiffs were responsible for leaking documents to the Times, Magistrate Judge Francis refused to require that the plaintiffs’ lawyers provide statements. He observed that, while the Times article referred to “raw intelligence” and “DD5s,” no such materials had been produced during discovery of the convention cases. Also, he added that it would have been “peculiar” for the plaintiffs to have furnished the same materials to Miller, as those obtained by the Times, since her article “supported the intelligence gathering strategies of the NYPD.” Magistrate Judge Francis, nonetheless, wrote that he would order the plaintiffs’ lawyers to give statements if the city could produce “direct evidence” of a violation of the protective order by a lawyer for the plaintiffs or definitively establish that no one within its control had leaked the documents. The city could make that showing, he wrote, by establishing a chain of custody for the intelligence documents. Further, everyone within that chain of custody would have to attest to whether they had violated the protective order and also identify any person to whom they had provided the documents. During the course of the convention, 1,800 demonstrators were arrested. But charges against 88 percent of them were either dismissed or adjourned in contemplation of dismissal, according to the Manhattan District Attorney’s Office. Of those arrested, 550 were released before they were arraigned as a result of court orders finding that the city had failed to comply with a state mandate that prisoners be arraigned within 24 hours of their arrests.
Daniel Wise is a reporter for the New York Law Journal , an ALM publication. He can be reached at [email protected].

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