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Pisani v. Westchester County Health Care Corp.

January 16, 2007

JOSEPH A. PISANI, PLAINTIFF,
v.
WESTCHESTER COUNTY HEALTH CARE CORPORATION, RICHARD BERMAN, INDIVIDUALLY, AND KARA BENNORTH INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Conner, Senior D.J.

OPINION AND ORDER

Plaintiff Joseph Pisani brings this breach of contract action against defendants Westchester County Health Care Corporation ("WCHCC"), Richard Berman, Chairman of WCHCC's Board of Directors, and Kara Bennorth, WCHCC's Assistant Vice President for Marketing and Strategic Development, following the termination of his employment in May 2005.*fn1 Presently before the Court is the motion of non-party Westchester County Deputy County Executive Lawrence S. Schwartz to quash a subpoena issued by plaintiff for Schwartz's deposition testimony regarding the events surrounding the termination of plaintiff's employment. For the following reasons, the motion is denied.

BACKGROUND

Plaintiff served as Executive Vice President of WCHCC, a public benefit corporation charged with operating various medical facilities, from January 15, 2004 until the termination of his employment on May 18, 2005. (Am. Complt.¶¶ 4, 7, 13.) Prior to working at WCHCC, plaintiff served as Executive Vice President of Staten Island University Hospital ("SIUH") from 1994 until August 2000, at which time he apparently departed voluntarily. (Topping Decl., Ex. B ¶ 8; Pl. Rule 56.1 Stmt. Resp. ¶ 7.) On May 18, 2005, the New York State Attorney General's Office issued, via its website, a press release announcing a settlement between New York State and SIUH regarding allegations of Medicaid fraud dating back to 1999, for which SIUH was to pay the state $76.5 million. (Am. Complt. ¶ 8; Topping Decl., Ex. A-1 ¶ 1.) The press release contained a written apology, which provided in pertinent part: "It causes SIUH's Trustees and current Executives much pain to come before our community in these circumstances. We deeply regret and are embarrassed by the misconduct carried out by former executives of the Hospital that led to this settlement." (Am. Complt. ¶¶ 8-9; Topping Decl., Ex. A-1 ¶ 3.)

On the day that the press release was issued, WCHCC terminated plaintiff's employment, citing unspecified misconduct as the reason for its termination. Pursuant to the terms of plaintiff's employment contract, WCHCC could terminate plaintiff's employment with or without cause, but, if it terminated him without cause, plaintiff would be entitled to an exit payment of $480,000. Although plaintiff was not named as a defendant in the SIUH action, his name appears in four of the fifty-nine paragraphs of the SIUH complaint. (Topping Decl., Ex. B.) Nevertheless, plaintiff asserts he has never been involved in medicaid fraud or any other wrongdoing. (Am. Complt. ¶¶ 11-12.)

In connection with the present action, plaintiff subpoenaed Schwartz for a deposition, pursuant to FED. R. CIV. P. 45, on the basis of his alleged direct participation in the decision to terminate plaintiff's employment. (Pl. Mem. Opp. Mot. Quash at 2-5.) Schwartz objects, contending, through counsel,*fn2 that he has no knowledge of the terms of plaintiff's employment or the circumstances surrounding its termination. (Schwartz Mem. Supp. Mot. Quash at 1-3.) Moreover, Schwartz contends that his status as a "high-level government official" insulates him from being deposed. (Id.)

DISCUSSION

Generally, "[a] party may take the testimony of any person, including a party, by deposition upon oral examination without leave of court . . . . The attendance of witnesses may be compelled by subpoena as provided in Rule 45." FED. R. CIV. P. 30. This generally broad access to witnesses during the discovery process is limited however, by FED. R. CIV. P. 26(c) (providing for the issuance of a protective order to avoid an "undue burden" on the deponent) and FED. R. CIV. P. 45(c) ("On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it . . . subjects a person to undue burden."). Although courts are loath to preclude parties from deposing prospective witnesses, special considerations arise when a party attempts to depose a high level government official.*fn3 See Marisola A. v. Giuliani, No. 95 Civ. 10533, 1998 U.S. Dist. Lexis 3719, *7 (S.D.N.Y. Mar. 23, 1998).

Although there is little precedent on the issue, courts of this circuit generally allow the deposition of high level government officials only if two conditions are met: "(1) the deposition is necessary in order to obtain relevant information that cannot be obtained from any other source; and (2) the deposition would not significantly interfere with the ability of the official to perform his governmental duties." Marisol A., 1998 U.S. Dist. LEXIS 3719 at *7; see also Martin v. Valley Nat'l Bank of Ariz., 140 F.R.D. 291, 314 (S.D.N.Y. 1991) ("[D]epositions of senior officials should be allowed if they possess particular information necessary to the development or maintenance of the party's case which would not otherwise be reasonably obtainable.") (internal quotation marks omitted). "The purpose of this rule is not only to leave officials free to conduct government business . . . but also to protect the mental processes of executive and administrative officers in order promote open channels of communication within government." L.D. Leasing Corp., Inc., v. Crimaldi, No. 91-CV-2430, 1992 U.S. Dist. LEXIS 18683, *3 (E.D.N.Y. Dec. 1, 1992) (citations omitted).

"The essential considerations on whether a high-ranking official will be deposed are the availability of this information through alternative sources and the official having unique personal knowledge that cannot be obtained elsewhere or through others." Oneida Indian Nation, 2001 U.S. Dist. LEXIS 21616 at *9. Put differently, "a party may only obtain the deposition of a high level official by showing that [the] official has particularized first-hand knowledge that cannot be obtained from any other source." Id. (internal quotation marks omitted). Nevertheless, it is, of course, axiomatic that "[m]otions to compel and motions to quash a subpoena are both entrusted to the sound discretion of the district court." In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003) (internal quotation marks omitted).

We first address whether Schwartz possesses relevant information that cannot be obtained from another source. Curiously, he has not submitted an affidavit as to his involvement or non-involvement in the termination of Pisani's employment, cf. Toussie v. County of Suffolk, No. 05-1814, 2006 U.S. Dist. LEXIS 47511, *4 (E.D.N.Y. July 13, 2006) (county executive submitted sworn affidavit stating that he had no personal knowledge of circumstances giving rise to case), and we cannot, based solely on a statement from his attorney, find that Schwartz possesses no knowledge of the termination. See United States v. Barrios, No. 97-1364, 2000 U.S. App. LEXIS 7133, *2-3 (2d Cir. Apr. 18, 2000) ("In the present case, the record does not reveal a submission to the district court of any affidavit from a person who had such personal knowledge. The affidavit submitted by [the defendant's] attorney was not made on personal knowledge.") (citations omitted; internal quotation marks omitted); United States v. Maldonado-Rivera, 922 F.2d 934, 972 (2d Cir. 1990) ("[trial] court properly declined to credit the attorney's affidavit because it was not based on the attorney's personal knowledge . . . ."); United States v. Gillette, 383 F.2d 843, 848-49 (2d Cir. 1967) (holding that statement submitted by attorney did not raise issue of fact because it did not allege personal knowledge on the part of the attorney).

Indeed, the evidence supplied by persons with personal knowledge regarding Pisani's termination suggests that Schwartz does possess relevant information that cannot be obtained from any other source. Defendant Berman stated in his deposition that he spoke extensively with Schwartz on the day that plaintiff's employment was terminated. (Berman Dep. at 17-19.) These conversations related directly to plaintiff's involvement in the misconduct mentioned in the press release, and Berman stated that he and Schwartz specifically discussed at length what to do about plaintiff, including whether to terminate his employment. (Id. at 41) ("Well, in our discussion back and forth he wanted to know what I was thinking about doing about [plaintiff's employment], including one of the options could have been terminating, suspending, doing nothing, et cetera.").

As stated previously, the principal issue in the present case implicates WCHCC's reasons for terminating plaintiff's employment. Plainly, Berman's statement indicates that Schwartz personally considered how to address the SIUH press release and whether to terminate plaintiff's employment. Accordingly, the first prong of the test, that the information cannot be gleaned from another source, is satisfied because of Schwartz's personal, and apparently significant, involvement in the termination of plaintiff's employment.

We now turn to the second prong of the test. No evidence suggests that Schwartz's appearance for a deposition would "significantly interfere with [his] ability to perform his governmental duties." Marisol A., 1998 U.S. Dist. LEXIS 3719 at *7 (emphasis added). Plaintiff has represented to the Court that the deposition would be conducted at Schwartz's own office and will be of short duration.*fn4 (Pl. Mem. Opp. Mot. Quash at 8.) Although any deposition will likely cause some interference with the performance of one's job, Schwartz has cited no examples of how ...


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