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Bey v. City of New York

June 28, 2007


The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge



Plaintiffs, Oba Hassan Wat Bey, Edward Ebanks, Herbert L. Hinnant, Michael Nichols, Pedro Rivera Bey, Sr. and Hassan Abdullah (collectively, "plaintiffs"), brought suit against defendants, the City of New York, Rudolph Giuliani and Bernard B. Kerik (collectively, "defendants"), alleging various violations of their constitutional rights. On February 23, 2007, District Judge Lawrence M. McKenna referred the case to the undersigned for general pretrial supervision. Pending before this Court is defendants' motion for a protective order pursuant to Federal Rule of Civil Procedure 26(c) precluding the depositions of Rudolph Giuliani, former Mayor of New York City; Edward Kuriansky, former Commissioner of the New York City Department of Investigations ("DOI"); Michael Caruso, former Inspector General for the Department of Corrections (DOC); David Klopman, an employee of DOC; and Nicholas Kaiser, a former attorney for DOC.*fn1 For the reasons that follow, defendants' motion is GRANTED, in part, and DENIED, in part.


Plaintiffs allege that they were unlawfully discharged on the basis of their identification as Moorish Americans. Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Protective Order for Edward Kuriansky, Rudolph Giuliani, Michael Caruso, Nicholas Kaiser and David Klopman ("Pl. Mem."), at 2. Plaintiffs claim that, in December 1997, Caruso, then Inspector General for DOC, suspended them from their jobs as DOC employees. Id. Plaintiffs were later placed on modified duty and, in March 1998, Caruso recommended that they be discharged. Id. Kaiser and Klopman drafted the charges brought against plaintiffs at their disciplinary hearing. Id. at 2-3. A hearing was held with an administrative law judge (ALJ) from the Office of Administrative Trials and Hearings, after which plaintiffs were fired. Id. at 3. Kaiser and Klopman represented DOC at the hearing. Defendants' Memorandum of Law in Support of Their Motion for a Protective Order ("Def. Mem."), at 3.


A. Standard of Review

According to Rule 26(b) of the Federal Rules of Civil Procedure, a party "may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party." FED. R. CIV. P. 26(b)(1). Generally, a party to a matter is allowed to "take the testimony of any person . . . by deposition upon oral examination . . . " FED. R. CIV. P. 30(a). However, Rule 26(c) authorizes courts, for good cause, to "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . that the disclosure or discovery not be had . . . " FED. R. CIV. P. 26(c).

In spite of the generally broad approach to discovery, when a party seeks to depose a high level government official "special considerations arise." Pisani v. Westchester County Health Care Corp., 2007 WL 107747, *2 (S.D.N.Y. Jan. 16, 2007). "Depositions of high level government officials are permitted upon a showing that: (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. v. Giuliani, 1998 WL 132810, *2 (S.D.N.Y. Mar. 23, 1998) (internal citations omitted). A deposition will be considered necessary under the first prong when "the official's testimony will likely lead to the discovery of admissible evidence" and the official has "unique personal knowledge that cannot be obtained elsewhere." Id. at *3 (internal quotations omitted). While this limited immunity is traditionally reserved for current high level officials, it has been applied to requests to depose former high level officials. See, e.g., Univ. Calvary Church v. City of New York, 1999 WL 350852, *1-2, 5 (S.D.N.Y. June 2, 1999).

B. Depositions of Mayor Giuliani and Commissioner Kuriansky

Defendants argue that plaintiffs should be precluded from deposing Giuliani and Kuriansky because they have not shown that either "have unique personal knowledge of information relevant to this action that cannot be obtained from another source." Def. Mem. at 9. Defendants did not, however, submit to the court affidavits as to Giuliani and Kuriansky's involvement or non-involvement in the events surrounding termination of plaintiffs' employment. In opposition to the motion, plaintiffs argue that Giuliani and Kuriansky have information that cannot be obtained elsewhere, participated in the activities leading to the plaintiffs' terminations, and are no longer government officials. Pl. Mem. at 2, 4-5; Declaration of Irene Donna Thomas in Opposition to Defendants' Motion For a Protective Order Precluding the Depositions of Giuliani, Kuriansky, Caruso, Klopman and Kaiser ("Thomas Decl."), at ¶ 4.

1. Commissioner Kuriansky

Plaintiffs argue that Kuriansky has unique personal knowledge arising out his participation in plaintiffs' terminations. Pl. Mem. at 5-6. Plaintiffs claim that, as Caruso's supervisor, they need to depose Kuriansky to determine how personally involved he was with the events of this case. Id. at 5. They claim that they are entitled to know what the effect of Giuliani's leadership was on DOI practices. Id. at 5-6. Plaintiffs assert that Kuriansky's public statements regarding Moorish Americans also justify the deposition because they are entitled to explore how he learned this information. Id. at 6. As to the investigation of plaintiffs conducted by the DOI, plaintiffs argue that the proposed deposition is necessary to determine Giuliani's involvement with the investigation and subsequent discharge, as well as whether Giuliani was aware that plaintiffs were allegedly considered a security risk. Id. Moreover, in light Caruso's claim at a previous deposition, that he did not remember the substance of conversations he had with Kuriansky about the investigation, what Kuriansky said in response, or who else was present for the conversations, plaintiffs argue that they have no other method of obtaining this information other than deposing Kuriansky. Thomas Decl., Exh. 8 at 2 (referencing Letter from Irene Donna Thomas to the Court, May 14, 2007, Exh. 1).

Based on plaintiffs' assertions, it appears that Kuriansky does possess unique personal knowledge, that is both relevant and cannot be obtained from another source. Marisol A., 1998 WL 132810 at *2. Kuriansky was Caruso's supervisor and, based on Caruso's testimony, was aware of, if not involved in, the investigation of plaintiffs. Caruso's testimony that he had conversations with Kuriansky, but does not recollect the substance, means that the information is not available through any other means. Because Kuriansky is no longer a governmental official, there is no reason to believe that a deposition would "significantly interfere with ...

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