Schoolcraft v. The City Of New York et al

Filing 137

DECLARATION of Suzanna Publicker in Support re: 135 MOTION to Quash Subpoena on Queens DA Richard Brown of Queens District Attorney Richard Brown.. Document filed by The City Of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Publicker, Suzanna)

EXHIBIT D

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Tne CrrY oF NEW Yonx

Lnw Dnp¡.nrMENT

MICHAEL A, CARDOZO
Corporation Counsel

SUZANNA PUBLICKER
tanl C orpora li on C ounse I

CHURCH STREET
NEW YORK, NEW YORK IOOOT

A ss is

IOO

E-mail : spubl ick@law, nyc.gov
Phone: (2 l2) 788-l I 03

Faxt [phone]

March 4,2013

BYF

2-633-1977) AND
Richard A. Gilbert, Esq,
rsi lbertlA,l evineandei lb e4.san0

I f S Cn.irtopher Street, 2nd Floor
New York, New York 10014

Re: Schoolcraft
10

cv

v. The City of New York. et al.
600s (RV/s)

Dear Counsel:

On Friday, March l, 2013, City Defendants learned of statements made by
plaintiff s counsel to the Village Voice, indicating that plaintiff had served a subpoena on the
þu."nr District Attorney's Office ("Queens DA") regarding plaintiff s lawsuit. City Defendants
cònfirmed this fact with our client, the Queens DA, and were surprised given the fact that City

Defendants had not (and still have not) received notice of any such subpoena pursuant to Fed. R.
Civ. P. 45, compliance with which is compulsory in this district. Cootes Drive L'L.C' v' Internet
*2-*3 (S.D.N.Y. March
Law Librarv. Inc., 0l Civ. 0877 (RLC),2002 U.S. Dist. LEXIS 4529,
tg, Z00Z) (failure to provide notice of subpoenas to counsel for all parties until day after
subpoenas were served is a "manifest violation of Rule 45"); Schweizer v. Mulvehill, 93 F.
Supp. 2d376,411 (S,D,N.Y.2000) ("The requirement of prior notice has been interpreted to
r.q.tir. that notice be given prior to the issuance of the subpoena, not prior to its return date'")
(internal citations omitted). Regardless of the factthatplaintiff has improperly directly contacted
the Queens DA, which is represented by this office, service of the subpoena violates the rules of
discovery, and moreover, plaintiff s have no good faith basis to seek the deposition of District
Attorney Richard Brown at this juncture,

As I'm sure you ate aware by now, based upon your review the case file, the
plaintiffls former
Queens DA documents sought by the subpoena were previously requested by
counsel Jon Norinsberg, Esq., as part of plaintiff s initial discovery demands. Thus, plaintiff s
attempts to circumvent the discovery process by directly subpoenaing the subject documents is
highly inappropriate, Had plaintiff taken issue with either City Defendants' objections to the
discovery request andlor the timing of the production of the subject documents, the proper
recourse was to seek relief from the court. In any event, this office has conferred with the
privilege, copy, and produce
Queens DA and been informed that it is endeavoring to review for

,

a

the requested records to this office within the next month, This office will thereafter produce any
relevant non-privileged documents. Accordingly, the subpoena duces tecum is moot'

In addition to the above, plaintifls demand for a deposition of District Attorney
Richard Brown is equally inappropriate.lAs you are no doubt a'ware, depositions of high-level
government officials are only allowed if: "l) the deposition is necessary in order to obtain
ielevant information that cannot be obtained from any other source, and 2) the deposition would
not significantly interfere with the ability of the offrcial to perform his governmental duties."
Marisot A. v. Giutiani,g5 Civ, 10533 (RJW), 1998 U.S. Dist, LEXIS 3719, at*6-*7 (S'D,N'Y'
March 23, l9g8). When applying the first prong, courts only permit the deposition of a high
ranking goverrìment officiãi if he hu. unique personal knowledge that cannot be obtained
elsewhirõ, Marisol, at *8. Upon information and belief, Richard Brown has no such unique
knowledge since he was neither present during the events alleged in the complaint nor was he
personally involved in the investigation of plaintifls claims by the Queens DA. Therefore any
àeposition of Richard Brown would be wholly irrelevant and intended only to harass, given your
reóent public statements regarding your displeasure with the conclusions reached by the Queens
DA. Flfihermore, uny ,.r"ñ non-party deposition would be extremely premature since plaintiff s
own deposition has nót yet been õompleted, and not a single defendant has been deposed, though
dozens ofdepositions have already been noticed.

Therefore, please withdraw your subpoena by the close of business on
March 6, 20i3, or else defendants will move on behalf of non-party District
Attorney Richard Brown to quash the subpoena and for Rule 11 sanctions attendant to the
making of such a motion.
'Wednesday,

Suzanna

tant Corpor ation C ouns el
Special Federal Litigation Division

A

cc

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Gleason (By Electronic Mail pjgleason@aol'com)
Nathaniel B. Smith (By Electronic Mail [e-mail])
A tt o r ney s for P I ai nt iff
Peter Joseph

City Defendants note that plaintiff s counsel and the Court was advised
held on January 28,2013,thatthe undersigned is sc
York,08 CV i034 beginning March IY'h, and Thu
Therefore, plaintiff s itempfed scheduling of vlr,

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questionable,

2

at the last conference
Floydv. City of New

for any d.gRositions'
March 18'n is highly

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Gregory John Radomisli (By Fax[phone])
MRnrn CleRRwRren & Bell LLP
Attorneys þr Jamaica Hospital Medical Center
220Easf42nd Street 13th Floor
New York, NY 10017

Brian Lee (By Fax [phone])
IVONE, DEVINE & JENSEN, LLP
Attorneys for Dr, Isak Isakov
2001 Marcus Avenue, Suite Nl00
Lake Success, New York 11042
Bruce M. Brady (By Fax [phone])
CALLAN, KOSTER, BRADY & BRENNAN, LLP
Atlorneys for Lillian Aldana- Bernier
I Whitehall Street
New York, New York 10004

V/alter Aoysius Kretz , Jr. (By Fax [phone])
SEIFF KRETZ & ABERCROMBIE
Attorney for Defendant Mauriello
444Madison Avenue, 30th Floor
New York, NY 10022

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