Opinion
01 Civ. 10137 (LAK)
September 18, 2002
ORDER
On the last business day prior to expiration of the discovery period, plaintiffs' counsel sent the Court a thirteen-page single spaced letter concerning eight discovery demands with which defendants allegedly have not complied. He seeks judicial intervention. The Court now having received defendants' response, the discovery issues are resolved as follows:
The letter violated the individual practices of the undersigned, which limit such communications to three pages.
1. The demand for disclosure of inspections of and actual and proposed remedial work for the Coney Island parachute jump (Gedan letter, ¶ b.) is denied. Plaintiffs have failed to establish sufficient comparability between the subject of this lawsuit, the demolition of plaintiffs' Thunderbolt Roller Coaster, and the parachute jump to make the demanded disclosure appropriate, taking into account both the differences in the circumstances attendant to the two facilities and the costs and benefits of the disclosure in light of the issues in the case. See FED. R. CIV. P. 26(b)(2).
2. The demand for disclosure of records of the New York City Police Department ("NYPD") and the American Society for Prevention of Cruelty to Animals ("ASPCA") concerning the demolition of the roller coaster, the so-called "friendly detention" of its caretaker, and the seizure and alleged killing of the watchdogs (Gedan letter, ¶ c.) is denied. There has been no showing that plaintiffs ever made a Rule 34 request for these records or, beyond a conclusory statement in counsel's letter, even made an oral request, let alone a request with any specificity, for them. The last business day prior to the date fixed for the conclusion of discovery is not an appropriate time at which to seek records, the relevancy of some of which would seem to have been obvious since the action was filed (see Cpt. ¶¶ 93-94), and the search for all of which might well be time consuming. In any case, the ASPCA is not a City agency; there has been no showing that its documents are within the defendants' possession, custody or control. Further, it is difficult to see how any documents relating to the removal of a caretaker from the premises by police or the removal of watchdogs by the ASPCA would have any material bearing on the issues in this case.
It is ironic that counsel seeks to rely on an unspecified oral request in view of his insistence that defense counsel not make requests on the record of depositions. Zeid dep. 245-46 (attached to Goldman letter, Sept. 10, 2002).
3. With respect to paragraphs e., f., g. and h. of Mr. Gedan's letter, defendants shall either produce the photographs in question or provide affidavits setting forth the scope of the searches conducted and stating that the photographs were not found.
4. Among plaintiffs' claims in this case is the contention that the City destroyed the roller coaster in part on the basis of racial animus on the part of former Mayor Giuliani against the plaintiffs' principal, an African-American. Cpt. ¶ 127. During the Mr. Giuliani's deposition, the following transpired:
"Q Were you aware of Mr. Bullard's race?
"A I am now.
"Q What is your understanding of his race?
"A That he's black. African-American.
"Q I have to ask you some questions on that subject. I'm going to try to be as delicate as possible and apologize in advance for having to ask that. Have you ever made any derogatory comments about African-Americans, suing any slurs, like the `N' word or —
"A I think this deposition is over. Thank you.
"MR. CARDOZO [Defendants' counsel]: Objection.
"A This deposition is over. That's an outrageous statement. I think we have concluded this deposition. Thank you. It was nice meeting you." (Giuliani Dep. 133-34)
Mr. Giuliani then left the deposition, and that his counsel refused to make any effort to procure his return.
The City seeks to defend Mr. Giuliani's walk out by contending that previous questions by plaintiffs' counsel were argumentative and that the question that provoked the walk out was "patently offensive" and not relevant. The prior questions, whatever their merits, are not relevant here. Defense counsel made objections where he thought appropriate and thus preserved such objections for trial. Certainly they did not provoke any effort to limit the deposition under Rule 30(d)(4). In view of plaintiffs' contention that race was a factor in his treatment, the former mayor's racial attitudes cannot be said to be irrelevant, however offensive he may find the plaintiffs' allegation. And we simply have not reached the point in this country where high public office, let alone former high public office, permits the holder to decide for himself when he will give evidence and when he will not. See generally United States v. Nixon, 418 U.S. 683 (1974); Clinton v. Jones, 520 U.S. 681 (1997). Mr. Giuliani shall return for the completion of his deposition and respond to the question in response to which he left the room. The completion of the deposition shall take place on a date and at a time agreed by the parties, which shall not be later than October 16, 2002 absent further order of this Court.
5. Plaintiffs seek to require the City "to disclose the racial/ethnic information of all developers of projects involving the City of New York . . . whose developments were approved during the Giuliani administration, for projects costing in excess of $2,000,000." (Gedan letter ¶ j.) This request is unripe and untimely. It is unripe because there is no evidence that plaintiffs ever made a Rule 33 or Rule 34 request for the information sought, the nature of which is not clear from counsel's letter. Without properly framed requests and objections, there is nothing to rule upon. And it is untimely because the last business day before the date for completion of discovery is no time to begin such inquiries. The defendants' objection is sustained.
Do plaintiffs want to know the race or ethnicity of the developers, whatever precisely that term means? The race or ethnicity of their employees? The race or ethnicity of those who would reside or be employed in the proposed projects? Do they want documents reflecting this information or do they wish to have the City compile such information or both? We are left to guess.
SO ORDERED.