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State v. National Railroad Passenger Corp.

December 12, 2007


The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge


Presently pending is the motion of non-party Office of the New York State Comptroller ("OSC") for an order pursuant to Fed. R. Civ. P. 45 quashing subpoenas for the depositions of former acting Comptroller Tom Sanzillo ("Sanzillo"), Assistant Comptroller Joan Sullivan ("Sullivan"), and former Comptroller Alan Hevesi ("Hevesi"). Docket No. 50. Defendant National Railroad Passenger Corporation ("Amtrak") opposes the motion. Docket No. 63. For the reasons which follow, the motion is granted in part and denied in part.

I. Background

The facts of this case are set forth in the order of United States Magistrate Judge Randolph F. Treece filed January 9, 2006, familiarity with which is assumed. See New York ex rel. Boardman v. Nat'l R.R. Passenger Corp., 233 F.R.D. 259, 261-62 (N.D.N.Y. 2006) (Docket No. 29) ("Order").

As is relevant to the pending motion, Amtrak previously sought production of certain documents from OSC through the service of discovery demands on plaintiff. OSC failed to comply, and Amtrak moved to compel disclosure. Docket No. 23. The motion was denied on the ground that OSC was not a party to this action. Order at 11; New York ex rel. Boardman, 233 F.R.D. at 270. Amtrak appealed and the Order was affirmed by the district court. Docket No. 35. Amtrak then issued the deposition subpoenas at issue herein for Sullivan, Sanzillo, and Hevesi, who filed the instant motion to quash.*fn1

II. Discussion

OSC requests an order quashing the subpoenas on the grounds that (1) Sanzillo and Hevesi are immune from being deposed because they are and were high-ranking government officials; (2) Sanzillo, Sullivan, and Hevesi are protected from being deposed by the deliberative process, mental process, and attorney client privileges; and (3) the depositions would be unduly burdensome.

A. Legal Standard

"While the court interprets liberally the discovery provisions of the Federal Rules of Civil Procedure . . . limits do exist." Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005). Fed. R. Civ. P. 45 requires that, upon "timely motion, the court by which a subpoena was issued shall quash . . . the subpoena if it . . . requires disclosure of privileged or other protected matter . . . or subjects a person to undue burden." Fed. R. Civ. P. 45 (3)(A)(iii) & (iv). If a motion to quash a subpoena is made, "[t]he burden of persuasion . . . is borne by the movant." Travelers Indem. Co., 228 F.R.D. at 113 (citations omitted).

B. High-Ranking Official

Generally speaking, "high ranking government officials are not subject to depositions." Marisol A. v. Giuliani, No. 95-CV-10533 (RJW), 1998 WL 132810 at *2 (S.D.N.Y. Mar. 23, 1998) (citations omitted). The classification of who constitutes a protected high-level government official is based upon the facts and context of the particular case, is "a matter of degree of importance," and is applied only to those individuals "consumed daily with matters of statewide . . . relevance . . . [such as] the operation of state government and the formulation of state policy." New York v. Oneida Indian Nation of N.Y., No. 95-CV-0554 (LEK/RFT), 2001 WL 1708804 at *3,4 (N.D.N.Y. Nov. 9, 2001). Individuals in such positions are afforded limited protection. Thus, "[d]epositions of high-level governmental officials are permitted . . . [if]: (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 or her governmental duties." (citations omitted). Id. at 3. Therefore, applying the high-ranking official protection is inappropriate if "a . . . government official . . . has unique personal knowledge that cannot be obtained elsewhere." Marisol A., 1998 WL 132810, at *3.

In this case, Sanzillo and Hevesi are protected from being deposed. First, both qualify as high-ranking government officials. While acting as Comptroller, Sanzillo and Hevesi were "New York State's chief fiscal officer," with duties including inter alia "managing the State's assets . . . , conducting management and financial audits of State agencies . . . , issuing reports on State finances . . . , [and] reviewing State contracts, payrolls and payments before they are issued . . . ." New York State Office of the State Comptroller - What are the Comptroller's Responsibilities? (visited Dec. 11, 2007) . Additionally, while serving as First Deputy Comptroller, Sanzillo was the chief aide to the Comptroller, providing critical assistance in policy implementation and program direction. Thus, the responsibilities of Sanzillo and Hevesi fit squarely within the criteria for duties pertaining to statewide relevance, the operation of state government, and the formulation of policy.

Second, Sanzillo and Hevesi do not possess unique personal knowledge that cannot be obtained from other sources. Sanzillo states that "[d]ue to [his] other responsibilities . . . , it [was] impossible . . . to involve [him]self in every detail of the contract review/appeal process. Rather, [he] delegate[d] such process to Ms. Sullivan, who ke[pt him] apprised of the relevant issues at a more strategic/policy level." Sanzillo Aff. (Docket No. 50, attachment 8) at ¶ 6. Furthermore, it appears that any deliberations that Sanzillo attended were also attended by Sullivan or resulted in a published report which is publicly accessible. Sullivan Aff. (Docket No. 50, attachment 2) at ¶¶ 13, 16, 18-25; Sanzillo Aff. at ¶ 23. Therefore, OSC has demonstrated that Sanzillo and Hevesi do not possess unique personal information because the information Amtrak seeks may be discovered through a deposition of Sullivan or from the published materials and correspondence already produced. Moreover, although Hevesi did not submit an affidavit, Sanzillo stated that he was ...

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