Yoder, et al v. Town of Morristown, et al

Filing 104

RESPONSE TO LETTER BRIEF filed by Menno L. Glick, John L. Hershberger, Menno S. Hershberger, Urie Hershberger, Andy A. Miller, Harvey Miller, Mose Miller, Dannie L. Swartzentruber, Mosie Swartzentruber, Peter D. Swartzentruber, Levi Yoder, Jonas Zook, Sam Zook as to 103 LETTER BRIEF filed by Lanetta Kay Davis, Howard Warren, Gary Turner, David Stout, III, Mark Blanchard, Town of Morristown, Christopher Coffin, Frank L. Putman . (Gerstein, Jason)

Proskauer Rose LLP Eleven Times Square New York, NY 10036-8299

February 14, 2012
By ECF
Hon. Thérèse Wiley Dancks
United States Magistrate Judge
U.S. District Court for the Northern District of New York
Syracuse, New York 13261-7346
Re:

Jason D. Gerstein
Attorney at Law
d 212.969.3134
f 212.969.2900
[e-mail]
www.proskauer.com

Yoder v. Morristown, No. 09-cv-00007 (NPM/TWD)

Dear Judge Dancks:
We, along with the Becket Fund for Religious Liberty, represent Plaintiffs in the abovereferenced matter. We write in response to Defendants’ February 14, 2012 letter to your Honor
(see Dkt. No. 103) concerning the availability of Defendant Kay Davis to sit for the Rule
30(b)(6) deposition of the Town of Morristown (“Morristown”) and her individual fact
deposition. Both depositions were noticed by Plaintiffs on March 22, 2010.
By way of background, this litigation is about the Town’s discriminatory application of
the state building code as against the Plaintiffs, who are Swartzentruber Amish individuals. As
Morristown’s Code Enforcement Officer, Ms. Davis is a party and an important witness, and she
has also been designated by Morristown as its 30(b)(6) representative for each of the 20 topics
listed in Plaintiffs’ notice. Securing Ms. Davis’s testimony – both in a 30(b)(6) and fact witness
capacity – is particularly important in light of the near-total lack of knowledge claimed by the
three Defendants who have already been deposed, including the Town Supervisor and Deputy
Town Supervisor.
Although Defendants have previously advised us and the Court that Ms. Davis was
medically cleared to work up to four hours per day in her capacity as Morristown’s Code
Enforcement Officer, Defendants continue to contend that she is not able to be deposed. (See
Dkt. Nos. 92, 94, 96-98, 103.)
While we have been, and continue to be, sensitive to Ms. Davis’s medical conditions, we
are at a loss to understand why she is medically capable of working — which entails at least a
moderate amount of physical activity while traveling around Morristown and inspecting
buildings — and even attending a portion of one of the depositions in this case, but she is not
capable of sitting for her own deposition. To accommodate Ms. Davis, we have even offered to
conduct her deposition in installments of four hours or less.
Therefore, we respectfully request that your Honor order Defendants to produce Ms.
Davis for the Rule 30(b)(6) deposition and her individual fact deposition in the next few weeks.

Beijing | Boca Raton | Boston | Chicago | Hong Kong | London | Los Angeles | New Orleans | New York | Newark | Paris | São Paulo | Washington, DC

Hon. Thérèse Wiley Dancks
February 14, 2012
Page 2
We are available to answer any questions that Your Honor may have for us.
Sincerely,

Jason D. Gerstein
cc:

Gregg T. Johnson, Esq.
Timothy J. Higgins, Esq.
Michael T. Mervis, Esq.
Russell L. Hirschhorn, Esq.
Daniel P. Goldberger, Esq.
Lori H. Windham, Esq.