DoorDash, Inc. v. City Of New York

Background

The plaintiffs challenged New York City ordinances that capped commissions charged to restaurants by third-party food-delivery services. They asserted six causes of action under the Contract Clause, the Takings Clauses, state and local-law provisions concerning the City’s police powers, the Due Process Clause, the Equal Protection Clause, and the Dormant Commerce Clause. They sought declaratory and injunctive relief, as well as damages.

During discovery, the plaintiffs served individual deposition notices for current City Council member Francisco Moya, former City Council member Mark Gjonaj, and Reginald Johnson, Gjonaj’s former chief of staff. They also served a deposition notice under Federal Rule of Civil Procedure 30(b)(6), which allows a party to question an organization through one or more designated representatives. The plaintiffs sought testimony on fourteen topics concerning, among other things, the ordinances’ purposes and expected effects, information considered by the City Council, alternatives to the ordinances, and communications with outside parties.

The City refused to produce the individual witnesses and objected to most of the 30(b)(6) topics. It principally relied on legislative privilege, a protection against compelled discovery into lawmakers’ legislative work, including their deliberations, motivations, information-gathering, and fact-finding. The City also raised other objections to the 30(b)(6) notice, but the court did not need to decide those additional objections.

Individual Depositions

The plaintiffs argued that the court should allow the depositions to proceed and address privilege objections only when particular questions were asked. Judge Stein rejected that approach. He held that the privilege can prevent a deposition from occurring at all when the proposed questioning would intrude on legislative activity. The court therefore applied the five-factor balancing test used in the Second Circuit: the relevance of the evidence, the availability of other evidence, the seriousness of the litigation, the government’s role in the challenged conduct, and the potential chilling effect on legislative activity.

The court found that the relevance factor favored disclosure, but only slightly. Evidence about the City Council’s intent could bear on the plaintiffs’ Dormant Commerce Clause claim, and the plaintiffs relied on public statements by Moya and Gjonaj. But the court said the motivations of two lawmakers were of limited value in determining the intent of the 51-member City Council as a whole.

The court found that the availability-of-other-evidence factor favored the City. The plaintiffs had access to public statements, a roughly 6,000-page legislative record, tens of thousands of City documents and communications, communications with lobbyists, documents from the New York City Hospitality Alliance and its representatives, more than 100 pages of text messages, and the deposition of the Alliance’s executive director.

The court recognized that the constitutional issues were serious and that Moya and Gjonaj had a direct role as co-sponsors and active supporters of the legislation. However, it concluded that the public interest in investigating possible economic protectionism and harm to the plaintiffs’ property rights did not outweigh the public interest in protecting lawmakers’ ability to perform their duties. The court also found that compelling testimony about the legislative process could discourage open debate and deliberation in the future.

Balancing the factors, Judge Stein concluded that the plaintiffs had not shown the extraordinary circumstances required to compel testimony from legislators or legislative staff. The court therefore denied the request for Rule 30(b)(1) depositions of Moya, Gjonaj, and Johnson. The court noted that the result could be different if the City later called those witnesses at trial or submitted their affidavits, but the City represented that it would not do so.

Rule 30(b)(6) Deposition

The court also denied the request for a Rule 30(b)(6) deposition on the fourteen disputed topics. Although the plaintiffs said the City could designate a non-lawmaker, the court held that the witness would still need to prepare by obtaining information about City Council members’ motivations, deliberations, and legislative fact-finding. That would intrude on the same protected legislative activity as direct questioning of the lawmakers.

The court also found the requested deposition unworkable because the relevant organization was the City Council as a whole. A witness prepared to testify about the Council’s collective knowledge and views would potentially need to consult all 51 Council members and then present a representative position for the Council. The court concluded that this was not the proper use of a Rule 30(b)(6) deposition and that the request would improperly intrude on legislative privilege.

Disposition

Judge Stein denied the plaintiffs’ motion to compel the Rule 30(b)(1) depositions and denied the motion to compel the Rule 30(b)(6) deposition on the fourteen disputed topics. The court’s conclusion states that the motion to compel depositions was DENIED in all respects and directed the Clerk of Court to terminate the pending motion.