By Stewart Bishop

Law360, New York (July 10, 2020, 10:17 PM EDT ) The New York federal judge overseeing the dispute between the Federal Defenders of New York and the Federal Bureau of Prisons over attorneys' access to clients in detention on Friday criticized the backlog of inmate requests for calls with their lawyers, calling the government's effort insufficient.

The remarks from U.S. District Judge Margo Brodie came during a conference call with Federal Defenders' attorneys, government lawyers for two New York City federal jails, mediator and former U.S. Attorney General Loretta Lynch of Paul Weiss.

The Federal Defenders sued BOP and the warden at Brooklyn's Metropolitan Detention Center last year over a suspension of attorney visits after incidents including a fire at the facility that knocked out power and left the building without heat in the middle of winter.

After the Second Circuit revived the suit as the COVID-19 pandemic took hold, Judge Brodie in March asked Lynch to step in and mediate the dispute. The Metropolitan Correctional Center in Manhattan has agreed to abide by the judge's rulings as well, thus far, to avoid a separate action in the Southern District of New York.

In the ensuing months, the parties have reported progress in ensuring that inmates have access to phone calls and videoconference sessions with their attorneys, but Judge Brodie said she was troubled by the fact there was still a backlog of dozens of inmates who have waited 48 hours or more at the MDC after requesting to speak with their attorneys.

"The numbers show that it is not working," Judge Brodie said.

Attorney/client calls had initially been scheduled to take place in the afternoon and BOP has periodically expanded those hours to include morning and evening sessions in order to handle demand. Judge Brodie on Friday ordered MDC to maintain evening hours for inmates to contact their attorneys for the time being in order to clear the backlog of attorney/client call requests.

Assistant U.S. Attorney Seth Eichenholtz said part of the issue is that there has recently been an increased demand for attorney calls from inmates, and if in any given day there is a request for an "outrageous" number of calls, there will have to be a backlog.

Eichenholz insisted that MDC was hoping to continue facilitating attorney/client calls in the evening, and asked for an opportunity to be heard before Judge Brodie issued an order to that effect, saying it wasn't appropriate.

"It was BOP's intent to continue to address these issues, notwithstanding whether an order was issued or not," Eichenholtz said.

"You've heard for weeks about this Mr. Eichenholtz, we've been discussing it. Every single call we talk about the overflow, the backlog, the need for more hours," Judge Brodie said. "And all you keep saying is you're dealing with it."

"Because we are, quite frankly," Eichenholtz replied.

"And not sufficiently," Judge Brodie said.

The judge said it should be expected that demand for attorney/inmate calls would increase as courts begin to reemerge from pandemic-related slowdowns.

"The courts are reopening, the grand juries now stand, cases are being indicted. So we all anticipated this great increase in volume of the calls, so this is not a surprise," Judge Brodie said.

The judge also urged MCC, which is not formally a part of the Federal Defenders' suit, to adhere to her directive to continue to hold evening hours for attorney/client calls until the backlog of outstanding requests is cleared.

SDNY AUSA Jeffery Oestericher pointed out that while MCC is voluntarily cooperating in the mediation, it was not party to this litigation, and as such, Judge Brodie does not have jurisdiction over the facility. Judge Brodie agreed, but said the end result of noncompliance may be less than helpful to MCC.

"As has been pointed out by Federal Defenders, they're happy to go file a lawsuit in the Southern District of New York against MCC if you don't cooperate," Judge Brodie said.

Deirdre von Dornum, the Attorney-in-Charge of the Federal Defenders for the Eastern District of New York, also voiced concern about the jails' handling of inmates' legal mail. She noted that two weeks ago during an apparent search for weapons at the MDC, numerous legal documents and discovery CDs were taken from inmates' cells and destroyed.

"We have a serious concern that it shows a continued disregard for the importance of legal mail," von Dornum said.

Von Dornum cited reports of physical assault and racists taunts by a BOP Special Operation Response Team that conducted the search.

Eichenholtz said the government is investigating what went on during the search in question, and would report back on how legal mail is treated.

The parties are due to convene for another conference on July 24.

The Federal Defenders are represented by Jenna M. Dabbs, Sean Hecker, Joshua Matz, Matthew J. Craig and Benjamin D. White of Kaplan Hecker & Fink LLP.

The government is represented by Varuni Nelson, Rachel Balaban, Seth D. Eichenholtz and Sean P. Greene of the U.S. Attorney's Office for the Eastern District of New York.

The case is Federal Defenders of New York Inc. v. Federal Bureau of Prisons et al., case number 1:19-cv-00660, in the U.S. District Court for the Eastern District of New York.

--Editing by Amy Rowe.

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