Bennett v. Cuomo

1

CHARLOTTE BENNETT, Plaintiff, v. ANDREW M. CUOMO, MELISSA DEROSA, JILL DESROSIERS, and JUDITH MOGUL, Defendants.

Civil Action No. 22 Civ. 7846 (VSB) (SLC)

United States District Court, S.D. New York

June 12, 2024

OPINION & ORDER

SARAH L. CAVE, United States Magistrate Judge.

I. INTRODUCTION

Before the Court are: (i) the motion of Defendant Andrew M. Cuomo (“Mr. Cuomo”) to compel non-party the Office of the Attorney General of the State of New York (the “OAG”)^[1] to comply with a subpoena dated August 21 2023 (the “OAG Subpoena”) seeking materials concerning the claims that Plaintiff Charlotte Bennett (“Ms. Bennett”) has asserted against Mr. Cuomo in this action (ECF No. 199 (the “OAG MTC”)); (ii) the OAG's cross-motion to quash the OAG Subpoena (ECF No 222 (the “OAG MTQ”)); (iii) Mr. Cuomo's motion to compel nonparties Cleary Gottlieb Steen & Hamilton LLP (“Cleary”) and Vladeck, Raskin & Clark, PC (“Vladeck,” with Cleary, the “Law Firms”)) to comply with subpoenas dated November 9, 2023 (the “Law Firm Subpoenas,” with the OAG Subpoena, the “Subpoenas”) seeking materials identical to those sought through the OAG Subpoena (ECF No. 207 (the “Law Firm MTC”)); and (iv) the Law Firms' cross-motion to quash the Law Firm Subpoenas (ECF No. 227 (the “Law Firm MTQ,” with the OAG MTC, OAG MTQ, and the Law Firm MTC, the “Motions”)). On May 8, 2024, the Court heard oral argument on the Motions. (ECF Nos. 202 ¶ 2; 265). For the reasons set forth below, (i) the OAG MTC is DENIED; (ii) the OAG MTQ is GRANTED; (iii) the Law Firm MTC is DENIED; and (iv) the Law Firm MTQ is GRANTED.

II. BACKGROUND

A. Factual Background

1. Ms. Bennett's Tenure in the Executive Chamber

Ms. Bennett, previously an aide to Mr. Cuomo during his tenure as Governor of the State of New York, alleges that throughout her employment from May 2019 until June 2020, Mr. Cuomo “subjected her to sexualized comments about her appearance, assigned her humiliating and demeaning tasks, and beginning in early June 2020, subjected her to invasive and unwanted questions about her personal life, romantic and sexual relationships, and history as a survivor of sexual assault.” (ECF No. 1 ¶ 2 (the “Complaint”)). Ms. Bennett alleges that she informed Defendants Jill DesRosiers (“Ms. DesRosiers”), Judith Mogul (“Ms. Mogul”), and Melissa DeRosa (“Ms. DeRosa”), who were Mr. Cuomo's Chief of Staff, Special Counsel, and Secretary, respectively, about Mr. Cuomo's conduct, but they failed to act, and further discriminated and retaliated against her. (Id. ¶¶ 12-14, 81-85, 91-106, 164-72, 183-200, 218-35). On October 23, 2020, Ms. Bennett resigned. (Id. ¶ 122).

2. The OAG Investigation^[2]

In December 2020, Executive Chamber staff member Lindsey Boylan (“Ms. Boylan”) published her account of sexual harassment by Mr. Cuomo. (ECF No. 1 ¶ 5). See Cuomo I, 683 F.Supp.3d at 262-64. In February 2021, Ms. Bennett “decided to make public her [] experience of sexual harassment by” Mr. Cuomo. (ECF No. 1 ¶ 125). On February 27, 2021, The New York Times published an article describing instances of Mr. Cuomo's alleged sexual harassment of Ms. Bennett during her employment. (Id. ¶ 126). On March 1, 2021, Mr. Cuomo, then Governor, referred Ms. Bennett's allegations to the OAG for an investigation (the “OAG Investigation”) pursuant to New York Executive Law § 63(8). (Id. ¶ 129).

On March 8, 2021, the OAG issued a press release announcing the appointment pursuant to § 63(8) of Joon H. Kim (“Mr. Kim”), a Cleary partner, and Anne L. Clark (“Ms. Clark”), a Vladeck partner, and their respective Law Firms to lead the OAG Investigation and issue a public report. (ECF No. 201 ¶ 4 (citing Press Release, Office of the New York State Attorney General, Attorney General James Makes Appointments to Lead Investigation Into Sexual Harassment Allegations Against Governor Cuomo (Mar. 8, 2021), https://ag.ny.gov/press-release/2021/attorney-general-james-makes-appointments-lead-investigation-sexual-harassment)); see ECF No. 225-4 at 2-3). The letters appointing Mr. Kim and Ms. Clark provided:

As a Special Deputy Attorney General appointed under Executive Law § 63(8), you have the authority to investigate and report on allegations of, and circumstances surrounding, sexual harassment by Governor Andrew Cuomo. This authority includes the power to subpoena witnesses, compel their attendance, examine them under oath and require that any books, records, documents or papers relevant or material to the inquiry be turned over to you for inspection, examination or audit.

The powers conferred under this appointment shall be used exclusively for the benefit of the OAG and the People of the State of New York....

During [the] appointment period, you will report to Jennifer Levy, First Deputy Attorney General or her designee(s), on behalf of the Attorney General.

(ECF No. 225-4 at 2-3 (the “Appointment Letters”)).

The OAG engaged the Law Firms “to provide investigation and legal services by assisting the [OAG] in its review of allegations of, and circumstances surrounding, sexual harassment” by Mr. Cuomo. (ECF No. 225-5 at 2, 5 (the “Engagement Letters”)). The Engagement Letters provided:

Pursuant to the [OAG's] March 8, 2021 appointment of members of the FIRM under Executive Law Section 63(8), and consistent with the Agreement, FIRM is authorized to utilize any of its resources as it deems appropriate to carry out the [OAG Investigation] consistent with the Section 63(8) appointment letters and the scope of services as set forth below.

(Id.) Mr. Kim and Ms. Clark assembled a team of six Special Deputies and ten Special Assistants from the Law Firms (together, the “Investigation Team”). (ECF No. 225 ¶ 12). The OAG contends that an attorney-client relationship existed “between the Investigat[ion] Team, the [L]aw [F]irms, and internal OAG attorneys working on the Investigation, all acting as attorneys to [the] OAG, the client.” (Id. ¶ 15).

On March 8, 2021, the Investigation Team commenced the OAG Investigation. (ECF No. 225 ¶¶ 12, 17). The Investigation Team members “used OAG email accounts for purposes of carrying out their OAG-related duties.” (ECF No. 238 at 6 n.3). The Investigation Team “periodically reported to [the] OAG, consulting with attorneys in [the] OAG's Office of General Counsel on issues relating to powers, practices, and procedures[.]” (ECF No. 224 ¶ 5; see ECF Nos. 225 ¶¶ 8, 19; 225-4 at 2-3; 225-5 at 2, 5;). During the OAG Investigation, Mr. Cuomo and others “indicated that they might assert legal challenges to aspects of the [OAG] Investigation, including the selection and appointment of [Mr. Kim and Ms. Clark], the scope of issued subpoenas, privileges, and access to investigative materials produced by other witnesses.”

(ECF No. 224 ¶ 6; see ECF No. 225 ¶ 20). As a result, the “OAG anticipated that litigation or other judicial proceedings initiated by [Mr.] Cuomo or others aligned with him were likely to result if the [OAG] Investigation yielded any negative results for [Mr.] Cuomo or the Executive Chamber.” (ECF No. 225 ¶ 20).

On August 3, 2021, the OAG and the Law Firms issued a report concluding that Mr. Cuomo sexually harassed multiple women in the Executive Chamber in violation of federal and state law and the Executive Chamber's policies. (ECF No. 201 ¶ 5 (citing Report of Investigation into Allegations of Sexual Harassment by Governor Andrew M. Cuomo, State of New York Office of the Attorney General (Aug. 3, 2021), https://ag.ny.gov/sites/default/files/2021.08.03 nyag -investigative report.pdf) (the “OAG Report”); see ECF Nos. 1 ¶ 135; 224 ¶ 7; 225 ¶ 18). The OAG Report attached 111 exhibits, including 400 pages of evidence. See Cuomo I, 683 F.Supp.3d at 263. A press release the same day noted that Mr. Kim and Ms. Clark, as well as other attorneys from the Law Firms, had been designated as “Special Deputies to the First Deputy Attorney General” to conduct the OAG Investigation and issue the OAG Report. (ECF No. 201 ¶ 7 (citing Press Release, Office of the New York State Attorney General, Independent Investigators Find Governor Cuomo Sexually Harassed Multiple Women, Violated State and Federal Laws (Aug. 3, 2021), https://ag.ny.gov/press-release/2021/independent-investigators-find-governor-cuomo-sexually-harassed-multiple-women)). During a press conference, Ms. James, Mr. Kim, and Ms. Clark described some of the evidence uncovered during the OAG Investigation and summarized the findings in the OAG Report. (ECF No. 201 ¶ 6 (citing REV, NY Gov. Andrew Cuomo Sexually Harassed Multiple Women, Report Finds: Letitia James Press Conference Transcript (Aug. 3, 2021), https://www.rev.com/blog/transcripts/ny-gov-andrew-cuomo-sexually-harassed-multiple-women-report-finds-letitia-james-press-conference-transcript)).

The OAG Investigation included interviews of 179 individuals, 41 of whom provided testimony under oath. (See OAG Report at 15). The identities of at least 100 of the witnesses have not been publicly disclosed. (ECF Nos. 224 ¶ 11; 225 ¶ 38). The OAG Investigation also involved the issuance of over 70 document subpoenas and collection of over 74,000 documents. (ECF Nos. 224 ¶ 5; 225 ¶ 18).

On August 6, 2021, in response to a request from the AJC, which was conducting an impeachment investigation of Mr. Cuomo, the OAG produced materials from the OAG Investigation. (ECF No. 225 ¶ 22 (the “AJC Production”)). The OAG conditioned the AJC Production on the AJC's agreement:

that in maintaining or disclosing any of the provided materials, it will endeavor to do so in a manner that protects any privileges attaching to such materials, and which is in furtherance of our shared duty to protect the public interest. Finally, [the] OAG and [the AJC] confirm their understanding that by providing these materials or

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