The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiff's motion to compel, this time seeking to compel production of certain privileged documents, continued depositions, and answer to interrogatories (Docket No. 97*fn1 ). Noting that the current Amended Scheduling Order (Docket No. 96) had discovery conclude by September 30, 2006, and dispositive motions due by November 20, 2006, this Court scheduled responses to this motion to be due on or before October 5, 2006, any reply was due on or before October 16, 2006, and the motion then was deemed submitted without oral argument (Docket Nos. 103, 104). The discovery deadline (Docket No. 96) was held in abeyance pending resolution of this motion (Docket No. 103). At the request of the parties, this schedule was extended further, with reply due by October 27, 2006, and the motion deemed submitted without oral argument as of October 27, 2006 (Docket Nos. 125, 126). The dispositive motion deadline (of November 20, 2006, Docket No. 96) also was held in abeyance pending determination of this motion (Docket No. 125).
Familiarity with the prior proceedings in this action is presumed.
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) (Docket No. 43), plaintiff alleged that the original sign ordinance was facially unconstitutional. 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 Town of Orchard Park ("Town" or "Defendant") answered (Docket Nos. 3, 6). In February 2002, defendant amended the sign ordinance (the "Second Ordinance"), among other amendments to add a provision listing the purposes for the ordinance, see Lamar Ad., supra, 356 F.3d at 369-70 (see Docket No. 105, Def. Atty. Aff. ¶ 33; Docket No. 106, Ex. F (legislative purpose for Second Ordinance)). 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, Lamar Ad., supra, 356 F.3d 365 (2d Cir. 2004) (Docket No. 43). The Second Circuit held that plaintiff alleged a cognizable injury giving it standing to sue, id. at 374, 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, with the Circuit Court noting that it would "benefit from a more developed record and a careful evaluation of the amended ordinance in light of the first amendment principles that have animated prior cases involving sign ordinances," id. (citations omitted).
Plaintiff next filed and served an Amended Complaint (Docket No. 45), which defendant answered (Docket No. 48). Plaintiff asserts claims under 42 U.S.C. § 1983 for the Town's violations of plaintiff's rights under the First, Fifth, and Fourteenth Amendments through enactment of a further amended version of the sign ordinance, addressing 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. 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 initially 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 then 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), and plaintiff intended to seek leave to amend its Complaint again to address the amended version of the ordinances. Defendant amended the ordinance 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). Plaintiff then amended the Complaint again (Docket No. 88), to address the fifth version of the Town's sign ordinance. Defendant answered this amended pleading (Docket No. 89).
Plaintiff made a series of motions to compel (Docket Nos. 64, 66, 90), which the defendant Town opposed and cross-moved for a protective order against producing present or former town officials (Docket No. 68). Third-party witnesses, the party chairs in Orchard Park, moved to quash subpoenas served upon them (Docket Nos. 57, 61). The Court granted plaintiff's motions and denied the motions for a protective order and to quash (Docket No. 76) and the parties stipulated to resolve the last motion to compel (regarding scheduling for various depositions, Docket No. 90) (Docket No. 93).
Plaintiff now seeks to compel production of certain privileged documents, continued depositions, and answer to interrogatories. Plaintiff claims that the Town did not provide a substantive response to interrogatory number 18 regarding non-commercial sign permits granted by the Town from 1995 to date (Docket No. 97, Pl. Atty. Aff. ¶ 19, Exs. B, C). The Town objected to this interrogatory as being unduly burdensome (id. Ex. B, Docket No. 101 (reproducing interrogatory answer for filing)).
The Town served a privilege log which identified certain communications between attorneys that the Town claims both attorney-client and attorney work product privileges (Docket No. 97, Pl. Atty. Aff. ¶ 21, Ex. D). Plaintiff identifies four letters or e-mails in which it claims the privileges were waived by being sent to third parties (id. ¶¶ 23, 24, 25, 26) and the log fails to support claims under either privilege (id. ¶¶ 22, 27). Plaintiff also objects to defense witnesses who refused to discuss (or were instructed not to answer) questions surrounding legal advise rendered to them (id. ¶¶ 31-38, Exs. G, H, I) and Town Attorney Leonard Berkowitz refused to answer most questions, asserting attorney-client privilege (id. ¶ 39, Ex. J).
Orchard Park Independence Party chair Francis Mahoney was instructed not to answer who paid for his legal representation (id. ¶ 28, Ex. E, EBT Tr. at 51), as was instructed former Orchard Park Democratic Party chair Thomas Glenn (id. ¶ 29, Ex. F, EBT Tr. at 87). Plaintiff argues that this fee information is not privileged and these witnesses should be recalled and compelled to answer (id. ¶ 30). In response to the Town, plaintiff argues, first, that the Town lacks standing as to this portion of the motion regarding the third-party witnesses, second, that then-Town Republican chair James Domalgalski's answers were evasive and not responsive to Mahoney and Glenn (Docket No. 128, Pl. Atty. Reply Aff. ¶¶ 16, 14, 10-13). Further, the Town's attorney statement of what the Town Attorney would testify to if asked about fee arrangements does not answer plaintiff's questions (id. ¶¶ 14-15).
Plaintiff argues that defendant cannot use attorney-client privilege as both a shield and a sword, by refusing to answer questions about that advice but later to rely upon it to justify amendments to the ...