Deide v. Day

Background

Judge Nelson Roman had previously allowed plaintiffs to conduct “limited, expedited discovery” concerning the issuance and intended enforcement of revised Orange County and Rockland County executive orders. Defendants then sought a protective order—a court order limiting or preventing discovery—to stop plaintiffs from deposing Orange County Executive Steven M. Neuhaus and Rockland County Executive Edwin J. Day. Plaintiffs separately sought a conference in anticipation of a motion to compel.

The parties disputed whether the authorized discovery could include information about earlier versions of the executive orders and the emergency declarations. Defendants argued that discovery should be limited to the short period between Judge Roman’s preliminary-injunction order and the revised orders, and that limited expedited discovery should include written discovery but not depositions.

Depositions

The court applied the rule that deposing a high-ranking government official requires exceptional circumstances, such as unique firsthand knowledge or information unavailable through less burdensome means. Defendants conceded that the County Executives had firsthand knowledge. The court found that their knowledge was unique because New York Executive Law § 24 gave them authority to find that public safety was imperiled, declare a local emergency, and issue local emergency orders.

The court also found that the County Executives had unique firsthand knowledge of their intent in issuing the orders. The opinion states that plaintiffs’ claims under the Equal Protection Clause, 42 U.S.C. § 1981, and Title II of the Civil Rights Act require proof that defendants intended to discriminate. The opinion also notes that the County Executives had made public statements about the reasons for their orders and that Judge Roman’s preliminary-injunction order had identified comments suggesting discriminatory purposes or motives.

The court concluded that limited, expedited discovery can include depositions of named parties when appropriate. It denied defendants’ request to preclude the depositions, but limited each deposition to three hours on the record. The depositions had to concern the issuance and intended enforcement of the revised executive orders, including the prior versions of those orders and the emergency declarations. The time used for each deposition would count toward plaintiffs’ seven-hour deposition limit for that witness, unless the parties agreed otherwise or the court ordered otherwise.

Scope of Written Discovery

The court held that the scope of limited, expedited discovery also included events leading up to the revised orders. In particular, it allowed discovery concerning prior versions of the executive orders and the emergency declarations. The court reasoned that this information could bear on defendants’ intent and motivations in issuing the revised orders, which plaintiffs were entitled to examine through discovery.

The court made no determination about whether any documents discussed during the conference were protected by privilege, stating that deciding that issue at that stage would be premature. The parties were directed to meet and confer about deadlines and submit a joint letter proposing deadlines by September 5, 2023. The court directed the Clerk of Court to close out ECF Nos. 71 and 74.

Disposition

The court denied defendants’ request to preclude the depositions of Edwin J. Day and Steven M. Neuhaus. It set limits on those depositions and defined the written-discovery scope as including prior versions of the executive orders and the emergency declarations. The order did not decide the underlying discrimination claims.