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East End Ventures, LLC, East End Ventures, Ii, LLC, and East End Ventures, Iii, LLC v. the Incorporated Village of Sag Harbor

December 19, 2011

EAST END VENTURES, LLC, EAST END VENTURES, II, LLC, AND EAST END VENTURES, III, LLC, PLAINTIFFS,
v.
THE INCORPORATED VILLAGE OF SAG HARBOR, BOARD OF TRUSTEES OF SAG HARBOR, PLANNING BOARD OF SAG HARBOR AND VILLAGE OF SAG HARBOR ZONING BOARD OF APPEALS, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:

I. PRELIMINARY STATEMENT

ORDER

This case arises out of the Village of Sag Harbor's (the "Village" or "Defendants")*fn1 application of an amended zoning code to a condominium project developed by East End Ventures, LLC, East End Ventures, II, LLC, and East End Ventures III, LLC (collectively, "Plaintiffs"). Plaintiffs claim that the Village abridged their rights to Equal Protection guaranteed by the United States Constitution in violation of 42 U.S.C. § 1983 by selectively enforcing the amended zoning code against them and not against a similar project (the "Bulova" project).

Plaintiffs seek to compel the deposition testimony of certain of the Defendants' representatives who refuse to answer questions on the basis of the "so-called legislative (or deliberative) privilege." DE 37 at 1. Plaintiffs argue that they merely seek factual disclosures which are not covered by the privilege or, alternatively, that the Defendants waived the privilege based upon the participation of outside consultants in the relevant discussions. Defendants' maintain that the deliberative process privilege is inapplicable here, but that the legislative privilege shields the testimony from discovery. Defendants also assert that the privilege was not waived by the presence of outside consultants. For the reasons set forth below, Plaintiffs' motion to compel is GRANTED.

II. BACKGROUND

On June 7, 2011, Plaintiffs deposed Tiffany Scarlato, former Village of Sag Harbor trustee.*fn2 Ms. Scarlato invoked the legislative privilege in response to several questions posed by Plaintiffs' counsel. After the deposition, Plaintiffs advised the Court that an issue had arisen at the deposition regarding Ms. Scarlato's invocation of the "legislative privilege." A status conference was held on June 29, 2011 during which the parties discussed this issue and the Court provided guidance regarding case law governing the "deliberative process" privilege. See DE 29. Counsel for Defendants stated that the assertion of such privilege was likely to come up in connection with at least two other scheduled depositions. In accordance with the scheduling order set at the conference, Plaintiffs submitted a letter brief discussing the "so-called legislative (or deliberative)" privilege and seeking "rulings on specific questions [and] guidelines for going forward." DE 37 at 1.*fn3 Defendants' response stated that Ms. Scarlato never invoked the "deliberative process" privilege and focused on the "legislative privilege." DE 45 at 1-2.

Although the parties identify several questions that Ms. Scarlato refused to answer on the grounds of legislative privilege, it is unclear for which questions Plaintiffs seek a ruling. According to Defendants, Ms. Scarlato invoked the legislative privilege in response to the following questions:

(1) What were your objectives in seeking a review of the existing code?

(2) What was the purpose of the moratorium?

(3) Why were other applications not allowed to proceed during this period, during the period of the moratorium?

(4) Why were some applications subjected to the moratorium and others not?

(5) At the point in time when you were aware that the request was made to East End Ventures, did you have an opinion as to whether the new code would apply to the East End Ventures application?

(6) What is the point of allowing an application to proceed under an exant [sic] code, under the old code, allowing it to be reviewed, allowing process to be made with respect to the application, only to then say that it's subject to a new code? What is the point in that?

(7) Would the various boards in Sag Harbor have East End Ventures present drawings and proposals premised upon the old code if it was not going to be subject to the ...


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