By Joseph Ax
NEW YORK, Nov 14 (Reuters) - A federal judge shepherding the
longstanding civil case stemming from the notorious 1989 Central
Park jogger rape case made an unusual ruling on Tuesday in an
effort to speed up the litigation's glacial pace.
The five men who were imprisoned for the rape had their
convictions vacated in 2002 after another man confessed to the
crime. They sued the city in 2003, claiming the confessions that
led to their convictions were coerced by police officers.
As part of discovery, the two sides agreed in 2008 to a
sweeping confidentiality stipulation that governs access to
sensitive documents, requiring attorneys and experts to examine
such materials only in their offices and to avoid showing them
U.S. Magistrate Judge Ronald Ellis, who is overseeing
discovery, expressed frustration on Tuesday at the frequent
disputes between both sides over whether certain documents
should be marked confidential.
He said the city has used an "overbroad" approach in
stamping the majority of documents confidential. A lawyer for
the plaintiffs said the confidential documents include clearly
non-sensitive items such as newspaper articles.
Ellis ruled that the burden of justifying whether a document
should be confidential would now rest with the party seeking
such a designation, rather than the objecting party. In other
words, if the city believes certain investigative materials are
confidential, and the plaintiffs disagree, the onus is on the
city to convince the judge.
The ruling unilaterally changed the stipulation agreement, a
rare move for a judge.
Ellis said on Tuesday that he did not know if there was any
precedent for his order, but he believed he had the power to do
"I'm putting the attorneys on notice that I'm going to hold
them personally responsible, including possible sanctions, for
the designation of confidentiality," he said. "The city should
not over-designate, and in some cases the plaintiffs should not
oppose the designation."
The two sides have traded accusations of unnecessary delays
as the case has plodded along in discovery for several years.
The five men -- teenagers at the time -- confessed to
beating and raping a 28-year-old investment banker out for a jog
in Central Park in April 1989. They recanted almost immediately,
but their confessions formed the linchpin of the case against
them, and they were convicted in two trials.
In 2002, convicted murderer and rapist Matias Reyes
confessed to the crime, and DNA testing tied him to the rape. A
judge eventually vacated the convictions against the five at the
request of then Manhattan district attorney Robert Morgenthau.
The case is In re McRay, Richardson, Santana, Wise and
Salaam Litigation, U.S. District Court for the Southern District
of New York, No. 03-cv-09974.
For the plaintiffs: Myron Beldock, Karen Dippold, Jonathan
Moore and Joshua Moskovitz of Beldock Levine & Hoffman; Jane
Fisher-Byrialsen, David Fisher, David Kreizer and Alissa Boshnak
of Fisher, Byrialsen & Kreizer; Michael and Evelyn Warren; Roger
For the city: Elizabeth Daitz, Philip DePaul, Elizabeth
Dollin and Andrew Myerberg of the New York City Law Department.
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