United States District Court, N.D. New York
Attorneys & Counselors, SARAH ROGERS, ESQ, WILLIAM A.
BREWER, III, ESQ., JOHN C. CANONI, ESQ., Attorneys for
of Attorney General, ADRIENNE J. KERWIN, ESQ., WILLIAM A.
SCOTT, ESQ., HELENA O. PEDERSON, ESQ., MICHAEL G. MCCARTIN,
ESQ., Attorneys for defendant Andrew Cuomo, Maria T. Vullo,
the New York State Dept. of Fin. Svcs.
Celli Brinckerhoff & Abady LLP, DEBRA L. GREENBERGER,
ESQ., ELIZABETH S. SAYLOR, ESQ., Attorneys for defendant
Maria T. Vullo.
York State Dept. of Financial Svcs., NATHANIEL J. DORFMAN,
ESQ., EAMON G. ROCK, ESQ., Attorneys for defendant New York
State Dept. of Fin. Svcs.
DECISION & ORDER
CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE.
March 20, 2019, the Court issued a Memorandum-Decision &
Order granting in part and denying in part plaintiff's
“Order to Show Cause for Expedited Discovery.”
Dkt. No. 89. In the underlying Order to Show Cause, as
relevant here, plaintiff sought expedited discovery of
defendant Maria T. Vullo. Dkt. Nos 21, 60. Defendants
opposed, contending that the high-ranking official exception
applied and that plaintiff failed to demonstrate the
existence of extraordinary circumstances warranting the
deposition. Dkt. No. 28 at 32-37. The Court found that the
high-ranking official standard applies to Ms. Vullo as the
former Superintendent of the Department of Financial Services
(“DFS”). Dkt. No. 89 at 10. Next, the Court
concluded that plaintiff demonstrated the existence of
extraordinary circumstances warranting Ms. Vullo's
deposition as there appeared to be information
“uniquely within Ms. Vullo's personal
knowledge.” Dkt. No. 89 at 10. More specifically, the
Court determined that plaintiff had demonstrated that there
was no less burdensome approach as interrogatories
defendants have failed to demonstrate that plaintiff must
first proceed with interrogatories because, although
interrogatories may be a less burdensome and adequate
alternative to deposing a high-ranking official in some
situations, here, it does not appear that interrogatories
would be comparable to Ms. Vullo's deposition nor useful
to obtain the information plaintiff seeks. As the parties are
well aware, interrogatories are limited in scope and number.
Were plaintiff to ask through interrogatories the kinds of
questions it seeks to ask in a deposition setting, it likely
would be met with several routine objections, ultimately
resulting in parties returning to the Court again to address
the matter of Ms. Vullo's deposition. Thus, it would
seem, in the facts of this case, that ‘ordering a
deposition at this time is a more efficient means' of
resolving [plaintiff's] claims ‘than burdening the
parties and the [official] with further rounds of
interrogatories, and, possibly, further court rulings and
Dkt. No. 89 at 11-12 (internal citations and additional
quotation marks omitted).
the Court, addressing defendants' argument that Ms. Vullo
“does not possess unique knowledge because plaintiff
could depose the out-of-state officials with whom plaintiff
alleges Ms. Vullo was communicating, ” concluded that
plaintiff had demonstrated that “Ms. Vullo's
specific rationale for her alleged actions is at issue in
this case such that her deposition testimony may be the only
way to address these ‘critical blanks' in the
record.” Dkt. No. 89 at 12. The Court agreed with
plaintiff's rationale that attempting to depose the
out-of-state officials to obtain information on their alleged
communications with Ms. Vullo was “likely to be met
with similar privileges and bars, and, thus, cannot be
considered a less burdensome or practical alternative to
deposing Ms. Vullo.” Id. at 13. Therefore, the
Court granted plaintiff's motion “insofar as
plaintiff will be permitted to depose Ms. Vullo to address
the extent and/or nature of her communications with others to
support plaintiff's selective enforcement and/or
‘censorship campaign' claims.” Id.
Motion for Reconsideration
April 4, 2019, defendants filed a Motion for Reconsideration.
Dkt. No. 95. Plaintiff opposed the motion. Dkt. No. 103.
Defendants filed a reply. Dkt. No. 114. Defendants ask that
the “Court reconsider its order” or “limit
the boundaries of Ms. Vullo's deposition to the discrete
issue raised by Plaintiff during oral argument.” Dkt.
No. 95-1 at 4 (citing Tr. at 17-18, 20-21, 23). More
specifically, defendants argue that the Court issue an order
“clarifying that the Plaintiff is only entitled to
inquire as to Ms. Vullo's communications with the
California Department of Insurance. Such communication is the
only information that Plaintiff identified as being uniquely
within Ms. Vullo's possession.” Id.
argues that defendants “simply disagree with the
Court” and have “fail[ed] to offer any compelling
reason to reconsider its decision to allow the NRA the chance
to obtain crucial discovery[.]” Dkt. No. 103 at 5.
Plaintiff therefore urges the Court to deny the Motion for