Local 2507, Uniformed EMTs, Paramedics & Fire Inspectors v. City of New York

Background

The plaintiffs sought to compel the deposition of New York City Fire Commissioner Robert Tucker. The underlying case concerns claims that differences in pay between emergency medical services employees and firefighters, who both work in the New York City Fire Department, resulted from sex and race discrimination.

The plaintiffs argued that Tucker’s testimony was needed to explain how he concluded that emergency medical services employees were underpaid and why he decided to appoint Fire Cadets awaiting appointment as firefighters to emergency medical services positions. They also pointed to statements Tucker had made about matters related to the litigation and to his responsibility for setting Fire Department policies and practices.

Legal standard

The court treated the requested deposition as an “apex deposition,” meaning a deposition of a high-ranking government or corporate official. Under Second Circuit precedent discussed by the court, a party seeking to depose a high-ranking government official must show exceptional circumstances. Examples include unique firsthand knowledge related to the claims or necessary information that cannot be obtained through less burdensome means. The requested information must also be relevant and proportionate under Federal Rule of Civil Procedure 26(b)(1). The party seeking the deposition bears the burden of making this showing.

Analysis

The court concluded that the plaintiffs had not shown why Tucker’s personal opinions or knowledge were relevant to their claims or the City’s defenses. Although whether emergency medical services employees were underpaid and why Fire Cadets were assigned to emergency medical services positions might matter to the case, the plaintiffs did not show that Tucker had unique firsthand knowledge of those subjects that could not be obtained from another high-level official or another source.

The court rejected the argument that Tucker’s public statements, his knowledge or views about the issues, his role as a policymaker, or his responsibility for decisions such as assigning Fire Cadets to emergency medical services positions established exceptional circumstances. The court said that being a policymaker or ultimate decision-maker, by itself, is not enough to require a high-ranking official’s deposition. The plaintiffs also did not assert that they had attempted to obtain the information through other depositions or discovery methods.

The court noted an additional reason for its decision: Tucker took office less than a year before the opinion and after the lawsuit was filed. According to his declaration, he lacked firsthand knowledge of underlying facts, including details about collective-bargaining negotiations; had not participated in collective-bargaining negotiations between the City and the unions; lacked information about the City’s decision to engage in pattern bargaining; and could not unilaterally change pay or benefits for Fire Department employees.

Disposition

Judge Gabriel W. Gorenstein denied the plaintiffs’ motion to compel Commissioner Tucker’s deposition. The opinion addressed the discovery request and did not decide the underlying sex- or race-discrimination claims.