The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are a series of discovery-related motions. First, certain non-party witnesses, chairs of the political parties in the defendant Town of Orchard Park (hereinafter "Quashing Movants"), move to quash subpoenas issued for their depositions (Docket Nos. 57, 61)*fn1 .
Second, plaintiff moves to compel depositions (including those for the defendant Town of Orchard Park (hereinafter "Town") town attorney, former supervisor, town building inspector, and town's party chairs) and to re-establish a Scheduling Order (Docket Nos. 64, 66)*fn2 .
Third, the defendant Town cross-moves for a protective Order barring discovery from the Town's attorney and former supervisor and a designated witness (Docket No. 68)*fn3 .
At issue for all motions is the scope of plaintiff's discovery surrounding the Town's zoning ordinances regulating signs in the Town. Most of the motions were given a common briefing schedule and all were given the same argument date, with responses due by February 17, 2006, any replies by February 24, 2006, and argument scheduled for (but ultimately not held, see Docket No. 75) on March 3, 2006 (Docket Nos. 60, 63, 65, 69). The motions were deemed submitted on March 3, 2006, and the Court reserved decision (Docket No. 75). Following the Quashing Movants' motion, the Court also stayed the Quashing Movants' depositions until after resolution of this motion (Docket No. 60).
The initial Complaint (Docket No. 1) challenged the constitutionality of defendant Town's sign ordinance, Ch. 144, Town of Orchard Park Code. As found by the United States Court of Appeals for the Second Circuit, Lamar Advertising of Penn, LLC v. Town of Orchard Park, 356 F.3d 365, 367, 369 (2d Cir. 2004), plaintiff alleged that the sign ordinance was facially unconstitutional, suing under 42 U.S.C. § 1983. Plaintiff argued that the ordinance violated the First Amendment because it was unsupported by a legitimate government purpose, it discriminated between and among signs bearing commercial and non-commercial speech. Plaintiff deemed the ordinance vague and leaving too much discretion with the Town Board in the approval of signs, and the ordinance conditioned speech on the payment of an excessive fee (the permit application fees), id. at 369.
Defendant answered (Docket Nos. 3, 6). In February 2002, defendant amended the sign ordinance, among other amendments to add a provision listing the purposes for the ordinance, see Lamar Ad., supra, 356 F.3d at 369-70. Plaintiff then moved for summary judgment and for injunctive relief (Docket No. 8). The undersigned issued a Report & Recommendations (Docket Nos. 23, 24) recommending denial of plaintiff's summary judgment and injunction motion. Plaintiff noted its objections (Docket Nos. 25, 30) and Chief Judge Arcara adopted the Report & Recommendations (Docket No. 34) and set a trial date (Docket Nos. 34, 37).
Plaintiff then appealed (Docket No. 35) and defendant cross-appealed (Docket No. 39). The Second Circuit vacated in part and affirmed in part this Court's judgment denying plaintiff summary judgment (Docket No. 43), Lamar Ad., supra, 356 F.3d 365 (2d Cir. 2004), holding that plaintiff had standing to contest the constitutionality of the zoning ordinances, id. at 373-75. The Second Circuit held that plaintiff alleged in its Complaint a multi-phased plan to build signs that would be restricted by the Town's ordinance and that plaintiff need not have first sought and been denied any permit prior to making its facial challenge to the sign ordinance, id. at 374 (citations omitted), hence alleged a cognizable injury giving it standing to sue, id. at 375. The Second Circuit vacated this Court's judgment on severability, id., also noting that some of plaintiff's claims were now moot (given amendments to the ordinance) but recognized plaintiff's ability to amend the Complaint to address the amended ordinance, id. at 368, 380. The Second Circuit remanded two major issues for further proceedings to be addressed as the parties proceed, id. at 380.
Plaintiff next filed and served an Amended Complaint (Docket No. 45), which defendant answered (Docket No. 48). Plaintiff asserts claims under § 1983 for the Town's violations of plaintiff's rights under the First, Fifth, and Fourteenth Amendments through enactment of an amended version of the sign ordinance. The Amended Complaint addressed the April 2004 amended sign ordinance (referred to by plaintiff, and here, as the "Fourth Ordinance," Docket No. 45, Am. Compl. ¶ 37) as well as the original enactment. Plaintiff alleges that the ordinance prohibition of "billboards" as described therein constitutes impermissible, content-based restriction on plaintiff's rights of free speech (Docket No. 45, Am. Compl. ¶¶ 43-49), that the ordinance made invidious distinctions between local businesses (which were allowed to have off-site signs) and all other businesses (which were not allowed) (id. ¶¶ 51-56). The amended ordinance allowed non-commercial speech and commercial speech on-site, but no other speech, in violation of the First Amendment (id. ¶¶ 59-69). Plaintiff alleges that the defendant Town enjoys unbridled discretion in allowing certain other signs (id. ¶¶ 72-82, 79). Plaintiff complains that the schedule of fees (based upon the square footage of the sign) conditioned speech upon payment of an excessive fee (id. ¶¶ 84-91). Finally, plaintiff alleges that the ordinance is impermissibly vague (id. ¶¶ 87-88, 92-96).
Plaintiff wants to enjoin enforcement of this Fourth Ordinance and plaintiff be allowed to erect outdoor advertising signs without restriction in Orchard Park. Plaintiff also seeks costs, attorney's fees and other relief (id. at 24-25), including declaratory relief that the Fourth Ordinance (id. ¶ 37) is unconstitutional. Note, plaintiff is not seeking damages. Chief Judge Arcara referred the case back to the undersigned for pretrial matters (Docket Nos. 49, 50, 51).
On May 12, 2005, the Court set a Scheduling Order with discovery due by December 30, 2005, and dispositive motions by March 30, 2006 (Docket No. 53). At a subsequent conference (see Docket No. 55), the parties indicated that this schedule may need to be extended. Defendant Town proposed to amend again its zoning ordinances (in part) in light of a recent district court opinion, Nichols Media Group, LLC v. Town of Babylon, 365 F. Supp. 2d 295 (E.D.N.Y. 2005). Once the Town amended its ordinances, plaintiff intended to seek leave to amend its Complaint to address the amended version of the ordinances, thus requiring extension of the existing Scheduling Order. Defendant indicates that the ordinance was amended on February 1, 2006 (Docket No. 68, Def. Memo. of Law at 1; see Docket No. 68, Def. Atty. Affirm. ¶¶ 10, 12-13, 14, Ex. B; Docket No. 70, Quashing Movants' Atty. Affirm. ¶¶ 4-5, Ex. A). To date, however, no one has sought leave to amend the pleadings.
As the parties conducted their respective discovery, they made the present motions. First, the Quashing Movants, the party chairs of the Democratic (Thomas Glenn), Republican (James Domagalski), Conservative (Remy Orffeo) (Docket No. 57), and Independence Parties (F. Patrick Mahoney) (Docket No. 61) in the defendant Town, moved to quash subpoenas (Docket No. 57, Kaczmarski Affirm. Exs. A-D) for their respective depositions by plaintiff initially scheduled for January 30 or 31, 2006. The Quashing Movants also seek recovery of their attorneys' fees, costs and disbursements (Docket No. 57).
In 2001, the Quashing Movants, as party chairs, mutually pledged to refrain from posting political signs in Orchard Park following the Town's repeal of zoning restrictions on political signs (Docket No. 57, Domagalski Aff. ¶¶ 8, 9, 7; see also Docket No. 57, Glenn Aff. ¶ 4, Orffeo Aff. ¶ 4; Docket No. 61, Mahoney Aff. ¶ 4)). The party chairs' "gentlemen's" agreement was recorded in the Town Board's minutes of February 21, 2001 (Docket No. 57, Domagalski Aff. ¶ 9; see Docket No. 66, Pl. Motion to Compel, Ex. G).
These movants also initially sought to quash the subpoena served upon Mahoney (see Docket No. 57, Domagalski Aff. ¶ 8) as a non-party witness similarly situated to movants since Mahoney was out of town when the motion was filed and then had not joined it. Mahoney then made his own "amended" motion to quash (Docket No. 61), joining with the other Quashing Movants in their motion.
The Quashing Movants argue that the subpoenas are unduly burdensome, that the Movants lack knowledge relevant to the claims asserted by plaintiff. See Fed. R. Civ. P. 45(c)(3)(A)(iv). As for Domagalski, who is also an attorney who represents the defendant Town generally and in this action (Docket No. 57, Domagalski Aff. ¶ 4*fn4 ), the Quashing Movants argue that questioning him may lead to disclosure of ...