Gugino v. City of Buffalo

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________

MARTIN GUGINO, DECISION

and

Plaintiff, ORDER

v.

21-CV-283-LJV-LGF

CITY OF BUFFALO,

MAYOR BYRON BROWN,

ROBERT McCABE,

AARON TORGALSKI,

JOHN LOSI,

BYRON C. LOCKWOOD,

DEPUTY POLICE COMMISSIONER

JOSEPH GRAMAGLIA,

Defendants.

_____________________________________

APPEARANCES: LIPSITZ GREEN SCIME CAMBRIA LLP

Attorneys for Plaintiff

RICHARD P. WEISBECK, JR.,

MELISSA D. WISCHERATH, and

ROBERT MacWILLIAMS CORP, of Counsel

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

HODGSON RUSS LLP

Attorneys for Defendants

KARALYN ROSSI,

HUGH M. RUSS,

PETER A. SAHASRABUDHE, of Counsel

The Guaranty Building

140 Pearl Street, Suite 100

Buffalo, New York 14202

RICHARD G. COLLINS, ESQ.

Attorney for non-party witness Jeffrey M. Selchick, Esq.

4185 Seneca Street, Suite 7

West Seneca, New York 14224

JURISDICTION

This action was referred to the undersigned by Hon. Lawrence J. Vilardo on

March 22, 2021 (Dkt. 6), for non-dispositive pretrial motions. The matter is presently

before the court on Defendants’ motion filed December 7, 2023, for a protective order

(Dkt. 79), Plaintiff’s motion filed December 18, 2023, to compel a further deposition (Dkt.

81), nonparty Jeffrey M. Selchick’s motion filed December 21, 2023, to quash his

deposition subpoena (Dkt. 82), Plaintiff’s motions filed January 12, 2024 for sanctions

and to compel discovery by non-party John Evans (Dkt. 92), and for expedited relief

regarding such motion (Dkt. 93), and Plaintiff’s cross-motion filed January 17, 2024, to

compel non-party Jeffrey M. Selchick’s deposition (Dkt. 98).

BACKGROUND and FACTS1

In this civil rights action commenced on February 22, 2021, Plaintiff Martin

Gugino (“Plaintiff” or “Gugino”), alleges Defendants, including the City of Buffalo (“the

City”), Mayor Byron Brown (“Mayor Brown”), Buffalo Police Department (“Buffalo

Police”) Officers Robert McCabe (“McCabe”), Aaron Torgalski (“Torgalski”), and John

Losi (“Losi”) (together, “Defendant Police Officers”), Buffalo Police Commissioner Byron

C. Lockwood (“Lockwood”), and then Deputy Buffalo Police Commissioner Joseph

Gramaglia (“Gramaglia”) (together, “Defendants”), violated Plaintiff’s constitutional rights

to freedom of speech, peaceful assembly, petition the government for redress of

grievances, and “movement,” and freedom from unreasonable seizures and unlawful

use of force by governmental agents, and due process of law. Complaint ¶ 1. Plaintiff

1 The Facts are taken from the pleadings and motion papers filed in this action.

asserts ten claims for relief including violations of his constitutional rights pursuant to 42

U.S.C. § 1983, as well as violations of New York common law. Plaintiff’s claims pertain

to an incident occurring in the evening of June 4, 2020, in front of Buffalo City Hall,

where Plaintiff was participating in a protest against perceived racially unjust law

enforcement policies (“the protest”). At that time, the City had enacted an 8:00 P.M.

curfew (“the curfew”). As the curfew approached, the Defendant Police Officers

allegedly used unnecessary force in physically assaulting Plaintiff putatively because

Plaintiff’s continued presence a few minutes after 8:00 P.M. was in violation of the

curfew (“the incident”). It is undisputed that Plaintiff sustained a fractured skull during

the incident.

On November 1, 2 and 3, 2021, one Jeffrey M. Selchick, Esq. (“Selchick”),

presided over an arbitration hearing involving disciplinary proceedings brought by the

City and the Buffalo Police against McCabe and Torgalski regarding the incident. On

April 8, 2022, Selchick issued an Opinion and Award (“arbitration decision”) resolving

the disciplinary charges against McCabe and Torgalski. Although the arbitration

decision, on which Selchick has never publicly commented, was released only to the

parties to the disciplinary proceedings, the full contents of the arbitration decision were

included in an April 8, 2022 article published in the Buffalo News.

On December 7, 2023, Defendants filed a motion for a protective order (Dkt. 79)

(“Defendants’ Motion for a Protective Order”), seeking a court order declaring Plaintiff’s

deposition of Gramaglia is complete. The motion is supported by the attached

Declaration [of Peter A. Sahasrabudhe, Esq.]2 in Support of Defendants’ Motion for

2 Unless otherwise indicated, bracketed material has been added.

Protective Order (Dkt. 79-1) (“First Sahasrabudhe Declaration”), with exhibits A through

E (Dkts. 79-2 through 79-6) (“Defendants’ Exh(s). ___”), and the Memorandum of Law

in Support of Motion for Protective Order (Dkt. 79-7) (“Defendants’ Memorandum”). On

December 18, 2023, Plaintiff filed the cross-motion to compel the continued deposition

of Gramaglia (Dkt. 81) (“Plaintiff’s Cross-Motion to Compel”), attaching Plaintiff’s

Memorandum of Law on Deposition Obstruction by Defendant Gramaglia (Dkt. 81-1)

(“Plaintiff’s Cross-Motion Memorandum”), the Declaration of Richard P. Weisbeck, Jr.,

Esq. (Dkt. 81-2) (“First Weisbeck Declaration”), and the Declaration of Melissa D.

Wischerath, Esq. (Dkt. 81-3) (“First Wischerath Declaration”), attaching exhibits A

through C (Dkts. 81-4 through 81-6) (“Plaintiff’s First Exh(s). ___”).

On December 21, 2023, non-party arbitrator Selchick filed a motion to quash a

subpoena served by Plaintiff for Selchick’s deposition (“Motion to Quash”) (Dkt. 82),

supported by the Declaration [of Richard G. Collins, Esq.] in Support of Motion to Quash

Plaintiff’s Subpoena to Testify at a Deposition in a Civil Action Served on Arbitrator

Jeffrey M. Selchick (Dkt. 82) (“First Collins Declaration”), attaching exhibits A through E

(Dkts. 82-1 through 82-5) (“Collins’s Exh(s). __”), the Declaration [of Selchick] in

Support of Motion to Quash Plaintiff’s Subpoena to Testify at a Deposition in a Civil

Action Served on Arbitrator Jeffrey M. Selchick (Dkt. 82-6) (“Selchick Declaration”),

attaching exhibits A and B (Dkts. 82-7 and 82-8) (“Selchick Declaration Exh(s). __”),

and the Memorandum of Law in Support of Motion to Quash Plaintiff’s Subpoena to

Testify at a Deposition in a Civil Action Served on Arbitrator Jeffrey M. Selchick (Dkt.

82-9) (“Selchick’s Memorandum”).

On January 10, 2024, Defendants filed the Reply Memorandum of Law in Further

Support of Motion for Protective Order and in Opposition to Plaintiff’s Motion to Compel

(Dkt. 91) (“Defendant’s Response and Reply”), attaching the Reply Declaration [of Peter

A. Sahasrabudhe, Esq.] in Further Support of Defendants’ Motion for a Protective Order

and in Opposition to Plaintiff’s Motion to Compel (Dkt. 91-1) (“Sahasrabudhe Reply

Declaration”), with exhibits A and B (Dkts. 91-2 and 92-3) (“Sahasrabudhe Reply

Exh(s). __”).

On January 12, 2024, Plaintiff filed a motion to compel non-party witness John

Evans (“Evans”) to answer all questions posed to him at his deposition by Plaintiff, and

ordering Evans’s attorney, Rodney Personius (“Personius”) to refrain from speaking

objections and deposition obstruction, as well as sanctions (Dkt. 92) (“Plaintiff’s Motion

to Compel”). Plaintiff’s Motion to Compel is supported by the attached Memorandum of

Law in Support of Motion to Compel (Dkt. 92-1) (“Plaintiff’s Memorandum – Motion to

Compel”), and the Declaration of Melissa D. Wischerath, Esq. (Dkt. 92-2) (“Second

Wischerath Declaration”), with exhibits B3 through E (Dkts. 92-3 through 92-6)

(“Plaintiff’s Second Exh(s). __”). Plaintiff also filed on January 12, 2024, a motion

seeking expedited relief on Plaintiff’s Second Motion to Compel, pursuant to Local

Rules of Civil Procedure – W.D.N.Y. Rule 7(d) (Dkt. 93) (“Plaintiff’s Motion to Expedite”),

attaching the Memorandum of Law in Support of Expedited Relief of Motion to Compel

Pursuant to L.R.Civ.P. 7(d) (Dkt. 93-1) (“Plaintiff’s Memorandum Supporting Motion to

Expedite”), and the Declaration [of Melissa D. Wischerath, Esq.] in Support of Motion to

Expedite (Dkt. 93-3) (“Third Wischerath Declaration”).

3 No exhibit denominated as “A” is filed in support of Plaintiff’s Motion to Compel.

On January 17, 2024, Plaintiff filed a cross-motion to compel Selchick’s

deposition and production of documents (Dkt. 98) (“Plaintiff’s Second Cross-Motion to

Compel”), attaching the Declaration of Melissa D. Wischerath, Esq. (Dkt. 98-1) (“Fourth

Wischerath Declaration”), Plaintiff’s Memorandum of Law (Dkt. 98-2) (“Plaintiff’s Second

Memorandum – Second Cross-Motion”), and exhibits A through C (Dkt(s). 98-3 through

98-5) (“Plaintiff’s Third Exh(s). __”). On January 22, 2024, Selchick filed the Reply

Memorandum of Law in Support of Motion to Quash Plaintiff’s Subpoena to Testify at a

Deposition in a Civil Action Served on Arbitrator Jeffrey M. Selchick and in Opposition to

Cross-Motion to Compel (Dkt. 99) (“Selchick Reply”), attaching exhibit A (Dkt. 99-1)

(“Selchick’s Exh. A”), the Second Declaration of Arbitrator Selchick in Support of Motion

to Quash and in Opposition to Cross-Motion to Compel (Dkt. 99-2) (“Second Selchick

Declaration”), with exhibit A (Dkt. 99-3) (“Police Discipline Triage Agreement”).

On January 24, 2024, Plaintiff filed the Reply Memorandum of Law by Plaintiff in

Further Support of His Cross-Motion and in Opposition to Defendant Gramaglia’s

Motion for a Protective Order (Dkt. 100) (“Plaintiff’s Reply and Sur-Reply”), attaching the

Declaration of Richard P. Weisbeck, Jr., Esq. (Dkt. 100-1) (“Second Weisbeck

Declaration”), with exhibits (Dkts. 100-2 through 100-7) (“Second Weisbeck Declaration

Exh(s). __”).

On January 26, 2024, non-party Evans filed the Response Declaration of

Counsel [Rodney Personius, Esq.] (Non-Party Witness J. Evans) (Dkt. 101) (“Personius

Response Declaration”), attaching a volume of exhibits A through H (Dkt. 101-1)

(“Personius Response Exh(s). __”), and Non-Party Witness J. Evans’ Memorandum of

Law (Dkt. 102) (“Evans’s Response”). On January 31, 2024, Plaintiff filed the Reply

Memorandum of Law by Plaintiff in Further Support of His Motion Against the Non-Party

Witness and His Attorney (Dkt. 103) (“Plaintiff’s Reply – Motion to Compel”). On

February 2, 2024, Evans filed the Surreply Declaration of Counsel [Rodney Personius,

Esq.] (Non-Party Witness J. Evans) (Dkt. 104) (“Personius Sur-Reply Declaration”).

In a letter dated March 22, 2024, Wischerath provided the court with an

additional page of a “Triage Agreement” originally filed as Dkt. 99-3 (“Police Discipline

Triage Agreement”). See Wischerath Letter (Dkt. 108), attaching inter alia, the missing

page (Dkt. 108-2) (“Additional Triage Agreement Page”). On March 25, 2024, Selchick

filed the Declaration of Richard G. Collins, Esq. in Response to Plaintiff’s Letter Motion

(Dkt. 109) (“Second Collins Declaration”), clarifying that the document attached to the

Wischerath Letter consists solely of an additional page of the Police Discipline Triage

Agreement that was missing from what was originally provided to Plaintiff.

Oral argument was deemed unnecessary.

Based on the following, Defendants’ Motion for Protective Order is DENIED;

Plaintiff’s Cross-Motion to Compel is GRANTED in part and DENIED in part; Selchick’s

Motion to Quash is GRANTED; Plaintiff’s Second Cross-Motion to Compel is DENIED;

Plaintiff’s Motion to Compel is GRANTED; and Plaintiff’s Motion to Expedite is

DISMISSED as moot.

DISCUSSION

1. Defendants’ Motion for Protective Order and Plaintiff’s Cross-Motion to

Compel

Defendants’ Motion and Plaintiff’s Cross-Motion to Compel pertain to Plaintiff’s

deposition of Defendant Joseph Gramaglia, Commissioner of the Buffalo Police

Department (“Gramaglia”).4 As relevant, on October 17, 2023, Gramaglia appeared for

a deposition conducted by Plaintiff’s counsel Richard P. Weisbeck, Jr., Esq.

(“Weisbeck”), and defended by defense counsel Hugh M. Russ III, Esq. (“Russ”) (“first

deposition session”).5 During the first deposition session, Weisbeck requested that

Gramaglia provide “yes or no” answers to some of the questions posed, but Gramaglia’s

answers were often in narrative form. The first deposition session commenced at 10:05

A.M., Gramaglia’s First Dep. Tr. at 1, and concluded at 4:24 P.M., when Gramaglia

explained he was unsure of how the word “retaliate” was defined as used in a question

posed by Weisbeck because Gramaglia was unaware that any member of the Buffalo

Police retaliated against a member of the media such that Gramaglia was unable to

answer the question. Id. at 254-56. Rather than clarifying the question, Weisbeck

unilaterally decided the deposition was “adjourn[ed] for the day.” Id. at 256. Weisbeck

expressed his intention to further depose Gramaglia prompting Russ to reserve the right

to object to any further deposition of Gramaglia. Id. at 258-59.

On November 9, 2023, Gramaglia appeared for the second deposition session

conducted by Weisbeck, and defended by defense counsel Peter A. Sahasrabudhe,

Esq, (“Sahasrabudhe”) (“second deposition session”).6 The second deposition session

commenced at 10:04 A.M., Gramaglia’s Second Dep. Tr. at 262, and ended at 10:49

A.M., when Weisbeck suspended the deposition, stating he would obtain a court order

4 Although at the time of the incident Gramaglia was Deputy Commissioner of the Buffalo Police

Department, in March 2022, Gramaglia was promoted to Commissioner of the Buffalo Police Department.

Dkt. 79-3 at 18.

5 A copy of the transcript of the first deposition session is filed as Defendants’ Exh. B (Dkt. 79-3).

References “Gramaglia’s First Dep. Tr.” are to the pages of this transcript.

6 A copy of the transcript of the second deposition session is filed as Defendants’ Exh. D (Dkt. 79-5).

References to “Gramaglia’s Second Dep. Tr.” are to the pages of this transcript.

directing Gramaglia to answer “yes or no” to “straight-forward questions. . . .” Id., at

306. When Russ responded that Gramaglia answered each of Weisbeck’s questions,

Weisbeck stated, “No, he hasn’t. I ask yes or no questions, and he still keeps going on.

We’re going to get a court order.” Id.

Defendants then filed the instant motion seeking a court order protecting

Gramaglia from being required to appear for a further deposition arguing further

deposition is inappropriate based on Gramaglia’s status as a high-ranking government

official and the fact that both the first and second deposition sessions, at which

Gramaglia testified for more than five hours, were unilaterally suspended by Weisbeck,

Defendants’ Memorandum at 3-5, and that Weisbeck’s suspension of the second

deposition session was in blatant disregard of the undersigned’s deposition rules. Id. at

5. Defendants further request the court award them costs and fees incurred in

connection with the motion. Id. at 6-7.

In his cross-motion to compel, Plaintiff references multiple portions of the

transcripts which Plaintiff maintains demonstrates Gramaglia’s obstructionist behavior in

answering various deposition questions, particularly providing answers in narrative form

rather than a simple yes or no, Plaintiff’s Cross-Motion Memorandum at 4-21, and

requests the court issue an order compelling Gramaglia to reappear for further

deposition and answer direct leading questions “yes” or “no” in accordance with

Fed.R.Evid. 611, in light of Gramaglia being a party and thus, by definition, an adverse

witness. Id. at 21. Plaintiff further argues that pursuant to Fed.R.Civ.P. 30(d)(1), an

extension of the seven-hour limit for depositions is warranted by Gramglia’s “evasive

and non-responsive answers.” Id. at 21-22. In opposition to Defendants’ Motion,

Plaintiff argues Defendants have failed to demonstrate the requisite good cause for the

requested protective order. Id. at 22-23. In further support of a protective order,

Defendants argue that Plaintiff fails to address Defendants’ argument that, according to

legal precedent high-ranking officials like Gramaglia should not be required to

repeatedly be deposed establishes the requisite good cause for a protective order,

Defendants’ Response and Reply at 5-6, and Plaintiff’s reference to Defendants’ failure

to follow the undersigned’s deposition rules refers not to Gramaglia’s deposition, but to

an instance in a prior deposition where Defendants’ counsel instructed another

deponent not to answer a question. Id. at 6. In opposition to Plaintiff’s Cross-Motion to

Compel, Defendants argue Plaintiff failed to establish that Gramaglia was evasive or

obstructionist during either of the two deposition sessions so as to support Weisbeck

suspending both deposition sessions. Id. at 2-5. In further support of Plaintiff’s Cross-

Motion to Compel, Plaintiff characterizes Defendants’ response as “personal attacks on

plaintiff’s counsel” to avoid being held responsible for Defendants’ “misconduct and

long-standing practice of failing to discipline officers who engage in police brutality,”

Plaintiff’s Reply and Sur-Reply at 3-6, asserting the court should exercise its “wide

authority and discretion to control discovery” by permitting a further deposition of

Gramaglia. Id. at 7-14. In further opposition to Defendants’ Motion, Plaintiff argues

there is no merit to Gramaglia’s argument that as a high-ranking official, he is entitled to

a protective order barring Gramaglia from further deposition practice. Id. at 14-15.

A. High-Ranking Official

The court first considers Defendants’ argument, Defendant’s Memorandum at 3-

5, that Gramaglia, as Deputy Police Commissioner, is a high-ranking official who

ordinarily is protected from being deposed, which Defendants maintain establishes the

requisite good cause for a protective order. Defendants’ Response and Reply at 5-6.

Plaintiff maintains Defendants, by failing to assert Gramaglia’s status as a high-ranking

official prior to the first deposition session, has rendered the argument “moot,” Plaintiff’s

Reply and Sur-Reply at 15, and that even if such argument is not moot, it is

nevertheless without merit because Gramaglia’s answers given during the first and

second deposition sessions establish Gramaglia “has unique first-hand knowledge

related to the litigated claims or [ ] the necessary information cannot be obtained

through other, less burdensome, or intrusive means.” Id.

“Depositions of high-ranking government officials are generally not permitted

except upon proof that ‘(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 governmental

duties.”’ Murray v. County of Suffolk, 212 F.R.D. 108, 109 (E.D.N.Y.2002) (quoting

Marisol A. v. Giuliani, 1998 WL 132810, at *2 (S.D.N.Y. May 23, 1998)). “High-ranking

government officials are generally shielded from depositions because they have ‘greater

duties and time constraints than other witnesses.’” Lederman v. New York City Dep't of

Parks & Recreation, 731 F.3d 199, 203 (2d Cir. 2013) (quoting In re United States

(Kessler), 985 F.2d 510, 512 (11th Cir.1993)). If courts did not limit these depositions,

such officials would spend “an inordinate amount of time tending to pending litigation.”

Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir.2007). “To depose a high-ranking

government official, a party must demonstrate exceptional circumstances justifying the

deposition—for example, that the official has unique first-hand knowledge related to the

litigated claims or that the necessary information cannot be obtained through other, less

burdensome or intrusive means.” Id. (citing Bogan, 489 F.3d at 423).

Defendants concede that Plaintiff “had a right to take the testimony of

Commissioner Gramaglia, as he was personally involved in the operations plan for the

police’s response to protests in the City of Buffalo on the date of the incident giving rise

to the plaintiff’s claims.” Defendants’ Memorandum at 4 (citing Gibson v. Carmody,

1991 WL 161087, at *1 (S.D.N.Y. Aug. 1991) (permitting deposition of New York Police

Commissioner who personally participated in the incident or investigation on the

incident and subsequent disciplinary proceedings). Nor do Defendants maintain the

information Plaintiff seeks could be obtained through means less burdensome or

intrusive than deposing Gramaglia. The court thus focuses on whether permitting

Plaintiff to further depose Gramaglia would significantly interfere with Gramaglia’s

performance of his official duties as Police Commissioner.

At the time of the incident, Gramaglia was Deputy Police Commissioner of

Operations, but in 2022, was promoted to Police Commissioner, Gramaglia First Dep.

Tr. at 18, the position Gramaglia held as of the first and second deposition sessions.

Regarding Plaintiff’s assertion that Defendants have not met their burden to establish

good cause for a protective order, Plaintiff’s Cross-Motion Memorandum at 22-23,

Defendants argue that Gramaglia, as Police Commissioner, is a high-ranking

government official which status alone provides the requisite good cause for the

requested protective order. Defendant’s Response and Reply at 5. Defendants’

argument is at best disingenuous given that Defendants produced Gramaglia for

deposition on October 17, 2023, and again on November 9, 2023, well after his

promotion to police commissioner. Not only does the fact that Gramaglia has already

appeared for two deposition sessions without Plaintiff having to obtain a court order

directing Gramaglia’s appearance despite Gramaglia’s position as Police Commissioner

undermine Defendants’ argument that further deposition of Gramaglia would

significantly interfere with Gramaglia’s performance of his governmental duties, but

Defendants have conceded that Gramaglia was personally involved in the Buffalo

Police’s operations plan in response to protests in Buffalo on the date of the incident

giving rise to the plaintiff’s claims without suggesting a less burdensome or intrusive

means of obtaining the information Plaintiff seeks. Nor does Gramaglia point to any

facts supporting his bald assertion that further deposition of Gramaglia would interfere

with Gramaglia’s performance of his duties as a high-ranking government official so as

to establish the requisite good cause for a protective order shielding Gramaglia from

further deposition practice. Accordingly, Defendants should not be allowed to now rely

on Gramaglia’s position as Police Commissioner to establish the requisite good cause

for a protective order.

Defendants’ Motion for a protective order should therefore be DENIED on this

ground.

B. Sufficiency of Gramaglia’s Answers and Further Deposition Practice

In opposition to Defendants’ argument that because Gramaglia has already

participated in two deposition sessions which Weisbeck unilaterally suspended and

should not be required to submit to further deposition, Defendants’ Memorandum at 5-6,

Plaintiff, in support of Plaintiff’s Cross-Motion to compel, references several excerpts of

the transcripts of the first and second deposition sessions which Plaintiff maintains

demonstrate Gramaglia repeatedly “evaded answering simple questions and “yes” or

“no” questions,” Plaintiff’s Cross-Motion Memorandum at 4-21, including “the foundation

question, i.e., does this comply with the police department’s policy.” Id. at 21. Plaintiff

argues that Gramaglia’s “evasive and non-responsive answers” warrant a court order

extending Gramaglia’s deposition, id. at 21-22, and that Weisbeck, rather than

suspending Gramaglia’s deposition, merely “paused” the deposition. Id. at 22-23. In

further support of a protective order and in opposition to Plaintiff’s motion to compel

further deposition of Gramaglia, Defendants maintain the excerpts of Gramaglia’s

deposition referenced by Plaintiff “do not amount to obstructing a deposition or being

evasive,” but “are ordinary occurrences at depositions,” Defendants’ Response and

Reply at 1, that Gramaglia, rather than being obstructive and evasive, provided

complete answers to each of the questions posed by Weisbeck, id. at 2-5, and that

Weisbeck’s unilateral suspension of Gramaglia’s first and second deposition sessions

were without justification. Id. at 5-6. In further support of his motion to compel and in

opposition to Defendants’ request for a protective order, Plaintiff argues that rather than

holding its police officers responsible for engaging in police misconduct, Defendants

resort to personal attacks against Weisbeck, Plaintiff’s Reply and Sur-Reply at 3-6,

urging the court to exercise its authority and discretion to control discovery including the

deposition of Gramaglia who evaded answering direct questions “yes” or “no,” id. at 7-

14.

Preliminarily, the court addresses Defendants’ references to excerpts of

transcripts from other depositions to demonstrate that at every deposition conducted in

connection with this action, Weisbeck is “combative and needlessly hostile.” First

Sahasrabudhe Declaration ¶ 4 (citing Defendants’ Exh. A (excepts from depositions of

Defendant Losi (Dkt. 79-2 at 2-20); Defendant McCabe (Dkt. 79-2 at 21-26), Defendant

Torgalski (Dkt. 79-2 at 27-34), and one Michael Palizay (Dkt. 79-2 at 35-38)).

Regardless of Weisbeck’s conduct at other depositions, the matter before the court is

Gramaglia’s deposition. Accordingly, the court does not concern itself with the other

referenced depositions.

Relative to Plaintiff’s insistence that Gramaglia should have limited his answers

to deposition questions to “yes” or “no,” Fed.R.Civ.P. 30(c)(1) provides that for

depositions by oral examination, “[t]he examination and cross-examination of a

deponent proceed as they would at trial under the Federal Rules of Evidence . . . .”

Further, Fed.R.Evid. 611(c)(2) specifically permits leading questions to be asked of,

inter alia, an adverse party. Accordingly, in deposing Gramaglia who, as a defendant to

this action, is an adverse party, Plaintiff is permitted to ask leading questions thereby

requiring a yes or no response. See Shaffer v. Consolidated Rail Corp., 1992 WL

73163, at *2 n. 2 (W.D.N.Y. Apr. 2, 1992) (noting that pursuant to Fed.R.Civ.P. 30(c),

Fed.R.Evid. 611(c) (permitting interrogation by leading questions when a party calls a

hostile witness or adverse party) applies to depositions).

Insofar as Defendants and Plaintiff dispute whether Weisbeck was justified in

suspending or pausing Gramaglia’s first and second deposition sessions, the court’s

review of the relevant deposition transcripts establishes Weisbeck’s conduct with regard

to Gramaglia’s deposition was not flawless. Specifically, a review of the transcripts of

the first and second deposition sessions reveals Gramaglia answered numerous

questions either “yes” or “no” or gave an equivalent one-word answer. See, e.g., First

Gramaglia Dep. Tr. at 42 (Weisbeck asking, “And part of that training is to instruct,

teach, and imbue the officers to avoid the use of force whenever possible, true?” and

Gramaglia responding, “Yes.”); and at 249-52 (Weisbeck asking a series of nine

questions to which Gramaglia essentially answered, “yes” or “true”); Second Gramaglia

Dep. Tr. at 268 (Weisbeck asking, “DeLong was the supervisor who was being

complained about in this e-mail, right?” to which Gramaglia responded, “Yes.”); and at

282 (Weisbeck asking, “Throughout the black lives matters protest in May and June of

2020, you and other members of the command team of the Buffalo Police department

were monitoring by video activities of protesters and demonstrators, true?” to which

Gramaglia responded, “True.”). Gramaglia’s answers to such questions thus do not

support Plaintiff’s Cross-Motion seeking to compel further deposition of Gramaglia.

Some of the questions Weisbeck posed to Gramaglia could not necessarily be

answered with a simple yes or no answer. For example, at the first deposition session,

Weisbeck asked Gramaglia, “Do you agree that the unconsented physical intrusion

when someone is being subject to the use of force, is a human rights violation?” First

Gramaglia Dep. Tr. at 30. Gramaglia responded, “I don’t agree with that statement. It

depends on the circumstances of what that use of force is, what necessitated that use

of force.” Id. at 31. Indeed, had Gramaglia simply responded, “yes,” Gramaglia would

have conceded that every unconsented use of force by law enforcement officers

constitutes a human rights violation, essentially denying law enforcement the right to

use force in any situation lest the officers be subject to liability for human rights

violations, and potentially leaving others at the risk of physical harm from a physically

unrestrained criminal. Alternatively, a negative response by Gramaglia would have

depicted Gramaglia as being unconcerned that the use of physical force could never

arise to a human rights violation, a very prejudicial position. Similarly, with regard to

another Buffalo police officer against whom disciplinary charges were brought alleging

the officer physically interfered with a citizen’s attempt to use her cell phone to record

an instance of asserted police brutality, Weisbeck asked whether “the actions by [a

former Buffalo police officer] were a violation of the department polices and procedures,

true?” Id. at 109. Gramaglia responded that because the officer retired during the

disciplinary proceedings, the matter was “never fully adjudicated” and therefore the

officer was never found guilty of any alleged departmental policy violations, id., adding

that when an officer retires while disciplinary proceedings against him are pending, the

disciplinary charges are never pursued to resolution. Id. at 110. Under such

circumstances, the question could not be accurately addressed by a simple “yes” or “no”

answer. Comparable questions were asked by Weisbeck at the second deposition

session. See, e.g., Second Gramaglia Dep. Tr. at 287-88 (Weisbeck asking, “So why

would they be denied - - citizens be denied the right to move about and protest against

police brutality after eight p.m., yet the press was exempt from that curfew?” and

Gramaglia answered, “It depends on the actions of the people, whether or not they are

doing other actions that are outside of the scope of their First Amendment right to

protest.”).

Weisbeck also posed questions that invited narrative, rather than a one-word

responses including, “And when you conduct that investigation, what do you do with the

results of the investigation?” First Gramaglia Dep. Tr. at 35. After requesting some

clarification, Gramaglia’s response, as expected, consisted of more than one word. Id.

at 36-37. See also First Gramaglia Dep. Tr. at 63-65 (Weisbeck asking Gramaglia to

provide a reason why the Buffalo Police advised against using members of the Buffalo

Police Department in providing examples of incidents of police officers using force

against citizens to teach the officers the proper manner in which to use force against

civilians, and after Gramaglia provided a reason, asking Gramaglia, “Is there anything

else?” thereby inviting Gramaglia to provide additional examples, a request with which

Gramaglia complied, again, answering in narrative form); Second Gramaglia Dep. Tr. at

273 (Weisbeck asking, “What was the purpose of being on the ground in the crowd?” to

which Gramaglia responded, “So that we can get firsthand information on whether there

was going to be any actions towards illegal activity, any destruction of property, and so

that we can know what’s going on within the crowd.”).

Further, several of Weisbeck’s questions are not only compound, but can be

fairly characterized as “argumentative.” See, e.g., First Gramaglia Dep. Tr. at 77 (“So

you obviously, from your life experiences, your academic experiences, have an

understanding that certain police officers will use cover charges against citizens when

they arrest them for a bad attitude, verbal abuse or other things where there’s not a

justification to arrest that person, and those are called cover charges, isn’t that true?”);

and Second Gramaglia Dep. Tr. at 286 (Weisbeck asking, “What is the reason that the

Buffalo Police Department allowed members of the press to exercise their First

Amendment rights during the curfew but denied other citizens the ability to exercise

their First Amendment rights during the curfew?”).

Significantly, between the commencement of the first deposition session at 10:05

A.M., and its conclusion at 4:24 P.M., there were only four questions to which Weisbeck

insisted Gramaglia answer “yes” or “no.” See First Gramaglia Dep. Tr. at 71-72 (“Is this

training [regarding de-escalation techniques and practical applications] that you are

mandating since 2021 going to be on an annual basis?”); 109-10 (Weisbeck asking

Gramaglia whether actions by a certain Buffalo police officer accused of using vulgar

language and interfering with a civilian’s recording a police response to a man in

distress “were a violation of the department policies and procedures, true?”); 128-29

(“Did anyone in the Buffalo Police Department define for its officers what essential

pedestrian and vehicular traffic would be?”); and 196 (“I’m asking you actually, sir, just

for you to answer yes or no. Did you at the time you saw the video of Hassett taking

that citizen and shoving him across the leg making him fall onto the floor, did you say to

yourself in words or substance, that’s improper conduct?”). Not only did Weisbeck

instruct Gramaglia to limit his answers to “yes” or “no” only with regard to these four

questions, but Weisbeck did not object to most of Gramaglia’s responses given in

narrative form.

The transcript of the second deposition session shows it proceeded in a fairly

routine manner for about 45 minutes until the following exchange occurred pertaining to

a video that was being shown to Gramaglia:

Weibeck: In fact, contrary to what you testified earlier, the black male

with the white T-shirt was directing his verbal statements to

the man in the black hat with the camouflage shirt, isn’t that

true?

Sahasrabudhe: Form.

Gramaglia: Yeah. It’s been three and a half years so I thought that there

was some more directive of the language towards him, but

apparently I was mistaken in that, from the video that I’ve

seen so far.

Second Gramaglia Dep. Tr. at 302.

Not satisfied with Gramaglia’s answer, Weisbeck requested the court reporter read the

question back to Gramaglia and the deposition continued as follows:

Weisbeck: Can you say yes or no to that?

Gramaglia: I answered the question.

Weisbeck: No. I’m asking can you answer yes or no?

Sahasrabudhe: Objection to form.

Weisbeck: No, you didn’t.

Gramaglia: I did.

Weisbeck: Sir, are you able to answer the question yes or no?

Gramaglia: Apparently, not to your satisfaction.

Weisbeck: This is a different question. Are you able to answer that

question yes or no?

Gramaglia: I am able to answer the question.

Weisbeck: Yes or no?

Gramaglia: I answered the question.

Sahasrabudhe: I think you got the answer you were looking for, Rick. I

mean, he said - -

Weisbeck: Well, I’m sorry, no. Please. I don’t. And I’m entitled to ask

him yes or no questions.

Sahasrabudhe: And he is entitled to respond - -

Weisbeck: I’m sorry. Let me finish - -

Sahasrabudhe: - - to the best of his ability.

Weisbeck: Just like Hugh [Russ] interrupts me all the time, you seem to

be doing that as well. I’m going to stop this deposition.

Sahasrabudhe: Rick.

Weisbeck: I'm going to ask the Court for an order to compel this

witness to answer that question yes or no, unless you want

to speak to him, because I'm entitled to simple yes or no

answers.

Sahasrabudhe: So --

Weisbeck: And if you want -- if you don't, if you don't want to speak to

your witness, we're going to stop now, and I'm going to bring

a motion.

Sahasrabudhe: He is entitled to answer the question to the best of his ability,

which he can. Can you answer that question yes or no?

Gramaglia: It does not appear that he engaged in anything.

Sahasrabudhe: There you go.

Weisbeck: That's not the word -- that's not what I asked.

Sahasrabudhe: So now you want him to say a specific word?

Weisbeck: Yes or no. Yes or no, that's what I want. I'm entitled to that.

Sahasrabudhe: No, you're not, but okay. Can you use the word yes or no to

appease Mr. Weisbeck?

Gramaglia: I don't know what conversations ensued between --

Weisbeck: That's not --

Gramaglia: -- the two persons.

Weisbeck: All right. I'm going to end this deposition, we're going to get a

court order.

Sahasrabudhe: For him to say yes or no?

Weisbeck: Yes. Not only to this question, but many other questions. I

have put up with this for one full day, and now I'm into the

second day, and I'm asking straight-forward questions about

yes or no, and this witness is decided throughout the entire

deposition that he's not going to answer yes or no to

questions that call for a yes or no answer, so we're ending

this, and we'll get a judge to decide whether he's compelled

to answer these questions.

Sahasrabudhe: He's answered every single question.

Weisbeck: No, he hasn't. I ask yes or no questions, and he still keeps

going on. We're going to get a court order.

Videographer: Going off the record, time is ten-forty-nine.

Second Gramaglia Dep. Tr. at 304-06

Although not answered with a single word response, Gramaglia clearly stated he

agreed with Weisbeck’s description of the video that “the black male with the white T-

shirt” depicted in the video was making statements to “the man in the black hat with the

camouflage shirt.” Why Weisbeck waited until this question to insist on “yes” or “no”

answers to questions is not clear to the court. Further, as Defendants counsel avers,

First Sahasrabudhe Declaration ¶ 11, in deposing Gramaglia, Weisbeck’s questions

largely did not directly pertain to the incident involving Gugino but, rather, to Buffalo

Police Department’s general policies and practices as well as training, particularly with

regard to encounters with civilians and crowds.

The court also observes that Defendants’ attorneys, including Hugh Russ, Esq.

at the First Deposition Session, and Peter Sahasrabudhe, Esq., at the Second

Deposition Session, entered a “form” objection to almost every question Weisbeck

asked, including more than 250 times during the first deposition session which lasted,

with breaks, five hours and 18 minutes, and more than 50 times during the second

deposition session which lasted only 45 minutes. Assuming such objections were

appropriately made, see cf. Galin v. Hamada, 283 F.Supp.3d 189, 200 (S.D.N.Y. 2917)

(characterizing counsel’s conduct in defending deposition “‘not entirely praiseworthy’”

based on counsel’s “‘repeated and unwarranted objections as to form – unconnected to

the Court’s order with respect to the scope of discovery.”), the two deposition transcripts

aptly demonstrate Defendants were perfectly capable of making such objections so as

to preserve for trial any challenges that Defendants might want to assert.7

Defendants further argue, Defendant’s Memorandum at 5; Defendants’

Response and Reply at 6, the instant motion practice could have been avoided had

Weisbeck, rather than unilaterally suspending the depositions sessions, simply recorded

objections on the record regarding any answers Weisbeck considered as not responsive

to the posed question, as required by “this Court’s rules.”8 Id. Although Plaintiff does

not directly respond to this argument, Defendant does not reference, and the court’s

research has not revealed, any case law requiring denying Plaintiff’s Cross-Motion to

Compel based on a failure to comply with the undersigned’s Guidelines for Discovery

7 The court notes that even frequent objections as to “form” are not improper “[b]ecause counsel

defending a deposition have an obligation to make timely and contemporaneous objections under Rule 32

. . . .” Edwards v. Wilkie, 2019 WL 5957171, at *3 (S.D.N.Y. Nov. 13, 2019). Further, “courts in the

Second Circuit have declined to impose sanctions based solely on voluminous, unwarranted, and

argumentative objections where opposing counsel was not prevented from completing the deposition.”

Edwards, 2019 WL 5957171, at *3 (declining to issue sanctions where “objections, while numerous, were

not inappropriate or unwarranted . . . [and t]he vast majority of the objections were not speaking

objections and did not involve colloquy . . . .”) (quotation and citation omitted).

8 Although Defendants do not specify which of “this Court’s rules” regarding depositions they maintain

Weisbeck violated, the context of this argument strongly suggests Defendants are relying on the tenth of

the undersigned’s 14 Guidelines for Discovery Depositions (Dkt. 21 at 4-5) which provides, as relevant

here, that “[e]xamining counsel shall not engage in any argument with opposing counsel as to these

issues; rather, his objection shall be taken on the record and appropriate relief from this court may be

sought upon completion of the examination.”

Depositions (“Deposition Guidelines”).9 Defendants’ Motion is thus DENIED as to

Weisbeck’s suspension of the second deposition session rather than completing the

deposition and then seeking guidance from the court.

C. Continued Deposition

Gramaglia has already submitted to six hours and five minutes of deposition

questioning including five hours and 18 minutes for the first deposition session and 45

minutes for the second deposition session for a total of six hours and three minutes of

deposition questioning. Fed.R.Civ.P. 30(d)(1) provides that “[u]nless otherwise

stipulated or ordered by the court, a deposition is limited to one day of 7 hours. The

court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly

examine the deponent or if the deponent, another person, or any other circumstance

impedes of delays the examination.” In the instant case, the record does not establish

any of the factors necessary to extend the time of Gramaglia’s deposition beyond the

permitted seven hours. Further, Weisbeck repeatedly stated he seeks to further depose

Gramaglia so as to ask only “yes” or “no” questions as permitted by Fed.R.Evid.

611(c)(2) (permitting leading questions to be asked of, inter alia, an adverse party). See

Fed.R.Civ.P. 30(c)(1) (providing that for depositions by oral examination, “[t]he

examination and cross-examination of a deponent proceed as they would at trial under

the Federal Rules of Evidence . . . .”). The court therefore directs Gramaglia to present

for an additional 57 minutes of deposition by Plaintiff, with all questions to be limited to

those that can fairly be answered with a simple “yes” or “no” or similar answer.

Relevantly, Plaintiff’s counsel is to refrain from any questions that cannot be answered

9 A copy of the Deposition Guidelines is also filed as Plaintiff’s Second Exh. D (Dkt. 92-5).

in such manner, including, inter alia, questions that are compound, argumentative, or

that necessarily call for an answer in narrative form.

Accordingly, insofar as Defendant seeks a protective order against further

deposition of Gramaglia, Defendant’s Motion is also DENIED, and Plaintiff’s Cross-

Motion to Compel further deposition of Gramaglia is GRANTED.

D. Sanctions

Defendants seek an award of costs and feed incurred in connection with

Defendants’ Motion. Defendants’ Memorandum at 6-7; Defendants’ Response and

Reply at 6. The denial of Defendants’ Motion for a protective order renders moot

Defendants’ request for an award of costs and attorney fees incurred in connection with

the motion.

Plaintiff also requests pursuant to Fed.R.Civ.P. 37(a)(5)(A) (“Rule 37__”) an

award of costs and attorney fees incurred in connection with Plaintiff’s Cross-Motion to

Compel. Plaintiff’s Cross-Motion Memorandum at 3; Plaintiff’s Reply and Sur-Reply at

7. “Rule 37(a)(5)(A) mandates an award of fees in connection with a successful motion

to compel, unless ‘after giving an opportunity to be heard’ the Court determines that ‘(i)

the movant filed the motion before attempting in good faith to obtain the disclosure or

discovery without court action; (ii) the opposing party's nondisclosure, response, or

objection was substantially justified; or (iii) other circumstances make an award of

expenses unjust.’” Hassoun v. Searls, 524 F. Supp. 3d 101, 109 (W.D.N.Y. 2021)

(quoting Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii), and Wager v. G4S Secure Integration, LLC,

2021 WL 293076, at *4 (S.D.N.Y. Jan. 28, 2021) (“[I]t is widely accepted that an award

of expenses under Rule 37(a)(5)(A) is mandatory unless one of the three exceptions

applies.”)).

Ordinarily the court must grant the party opposing a successful motion to compel

an opportunity to be heard prior to deciding whether the moving party should be

awarded attorney fees. Fed.R.Civ.P. 37(a)(5)(A). Attorney fees, however, need not be

awarded where the opposing party’s position was “substantially justified.” Fed.R.Civ.P.

37(a)(5)(A). “‘Substantially justified’ does not mean ‘justified to a high degree, but rather

has been said to be satisfied if there is a ‘genuine dispute,’ over a legal issue.”

Coleman v. Dydula, 175 F.R.D. 177, 181 (W.D.N.Y. 1997) quoting Pierce v.

Underwood, 487 U.S. 552, at 565 (1988) (position of party opposing an award of

attorney fees “can be substantially justified if a reasonable person would think it

correct.”) (citing Advisory Committee’s Notes on 1970 Amendments to Fed.R.Civ.P.

37(a)(4)).10

In the instant case, the relief sought in Plaintiff’s Cross-Motion to Compel, i.e., a

court order directing Gramaglia’s further deposition, is in direct contrast to the relief

sought in Defendants’ Motion, specifically, a court order protecting Gramaglia from

further deposition by Plaintiff. In these circumstances, it is clear that both Defendants’

Motion and Plaintiff’s Cross-Motion were necessitated by a “genuine dispute” over a

legal issue such that Defendants’ opposition to Plaintiff’s motion was “substantially

justified.” Nor have Defendants flouted the Federal Rules of Civil Procedure or this

10 In 2007, Rule 37 was “slightly reworded ‘as part of the general restyling of the Civil Rules to make them

more easily understood and to make style and terminology consistent throughout the rules.’” Novak v.

Wolpoff & Abramson LLP, 536 F.3d 175, 178 (2d Cir. 2008) (quoting Advisory Committee Note to 2007

Amendments to Fed.R.Civ.P. 37. At the same time, Fed.R.Civ.P. 37(a)(4)(A) was recodified as

Fed.R.Civ.P. 37(a)(5)(A). Robbins & Myers, Inc. v. J.M. Huber Corp., 2010 WL 3992215, at * 4 n. 10

(W.D.N.Y. Oct. 12, 2010).

court’s Deposition Guidelines by such conduct as failing to produce Gramaglia for

deposition or instructing Gramaglia not to answer any questions posed by Plaintiff.

Further, a review of the deposition transcripts establishes that Weisbeck took issue with

Gramaglia’s failure to respond with “yes” or “no” answers only a handful of times until

just prior to Weisbeck’s unilateral suspension of the second deposition session. See,

e.g., First Gramaglia Dep. Tr. at 71-72, 109-10, 128-29, and 196. Under such

circumstances where Defendants’ Motion demonstrates that Defendants’ opposition to

Plaintiff’s request to further depose Gramaglia was substantially justified based on the

existence of a genuine dispute on a legal issue, specifically, whether Plaintiff was

entitled to ask leading questions calling for yes or no answers, permitting Defendants an

opportunity to be heard regarding whether to award Plaintiff’s attorney fees is

unnecessary and would waste judicial resources. See Williams v. New York State

Gaming Commission, 2024 WL 99356, at * 5 (W.D.N.Y. Jan. 9, 2024) (granting the

moving party a limited award of attorney fees on a motion to compel without permitting

the opposing party a separate opportunity to be heard where the arguments raised in

opposition to the motion to compel were meritorious as to two of the withheld

documents). Plaintiff’s request for an award of attorney fees therefore DENIED.

Based on the circumstances presented in this case, Defendants’ Motion for a

protective order is DENIED; Plaintiff’s Cross-Motion to Compel further deposition of

Gramaglia is GRANTED in part and DENIED in part. Gramaglia is ORDERED to submit

to an additional deposition session limited to 57 minutes, during which Plaintiff shall be

permitted to ask only questions consistent with Fed.R.Evid. 611(c)(2).

2. Selchick’s Motion to Quash and Plaintiff’s Cross-Motion to Compel

As stated above, Background and Facts, supra, at 3, on April 8, 2022, Selchick

issued the arbitration decision resolving the disciplinary charges against McCabe and

Torgalski, subsequent to which Plaintiff served Selchick with a Subpoena to Produce

Documents, Information or Objects dated April 11, 2022,11 (Dkt. 82-3) (“first subpoena”),

commanding production of documents generated in connection with the resolution of

the disciplinary charges (“the documents”) by May 2, 2022. In a letter dated April 25,

2022, Mr. Collins advised Plaintiff’s counsel of Selchick’s objections to the first

subpoena (Dkt. 82-5) (“Collins’s Letter”) and included Selchick’s objections pursuant to

Fed.R.Civ.P. 45(d)(2)(B) (Dkt. 82-4) (“first subpoena objections”), asserting Collins’s

production of the documents in compliance with the first subpoena would necessarily

violate both confidentiality and ethical obligations applicable to Selchick as an arbitrator.

Plaintiff did not then respond to Selchick’s first subpoena objections. A Subpoena to

Testify at a Deposition in a Civil Action dated November 10, 2023 (Dkt. 82-1) (“second

subpoena”) Plaintiff served on Selchick,12 commands Plaintiff to appear on December 7,

2023, both to be deposed and to produce the same documents sought by the first

subpoena.

Selchick moves to quash the second subpoena arguing it seeks testimony and

disclosure of material that are privileged, confidential, and protected from disclosure

because it pertains to Selchick’s decision-making and thought processes as an

arbitrator and that disclosure would also violate Selchick’s ethical obligations as an

11 The record does not indicate the date on which Selchick was served with the first subpoena.

12 The record does not indicate the date on which Selchick was served with the second subpoena.

arbitrator to preserve the confidentiality of arbitration proceedings over which he

presides. Selchick’s Memorandum at 4-7 (citing Fed.R.Civ.P. 45(d)(3)(A)(iii) and

cases). In opposition to Selchick’s Motion, Plaintiff cross-moves to compel Selchick

both to sit for deposition and to produce the documents, arguing Selchick improperly

invokes the arbitrator privilege as shielding Selchick both from being deposed as well as

from producing documents because “the power and duty to discipline members of the

Buffalo Police department is [sic] vested in the police commissioner,” essentially calling

into question Selchick’s standing to oppose the second subpoena, Plaintiff’s

Memorandum – Second Cross-Motion at 2-5, and the second subpoena is directed not

at Selchick’s thought processes but at the authority pursuant to the Federal Arbitration

Act, 9 U.S.C. §§ 1-16 (“FAA”) for Selchick’s decisions and potential bias. Id. at 5-9. In

further support of the motion to quash, Selchick argues he was not required to produce

a privilege log because the documents sought by the second subpoena are the same

documents demanded by the first subpoena to which Selchick timely filed objections

and that Plaintiff, by failing to challenge such objections, waived any challenge, Selchick

Reply at 3, that the caselaw on which Selchick relies in moving to quash is not based on

an analysis of the FAA but on the doctrine of arbitrator confidentiality or privilege rooted

in preserving the arbitral process which is not unique to the FAA, id. at 4-5, and that

Selchick’s authority to arbitrate disciplinary disputes between the City and the Buffalo

Police Benevolent Association (“PBA”) is found in a May 5, 2014 Memorandum of

Agreement the City and the PBA (Dkt. 99-3) (“Memorandum of Agreement”) which

appoints Selchick as the Hearing Officer mutually selected by the City and the PBA to

provide over disciplinary matters and whose opinions and awards “shall be final and

binding on all parties.” Memorandum of Agreement ¶¶ 3, 8.

Plaintiff argues that Selchick is without standing to assert the arbitrator privilege

because Selchick was never properly vested with the power and duty to discipline

members of the Buffalo Police and that such power lies only with the Police

Commissioner, Plaintiff’s Memorandum – Second Cross-Motion at 2-5, an argument

Selchick strongly opposes. Selchick Reply at 4-6. Although not raised by the parties, it

is not Selchick who is without standing to challenge Selchick’s authority as an arbitrator,

but Plaintiff, who was not a party to the arbitration proceedings. See Katir v. Columbia

Univ., 15 F.3d 23, 24-25 (2d Cir. 1994) (individual who is not a party to an arbitration

proceeding is without standing to challenge the proceeding); Clarke v. Board of

Education of City School, 185 N.Y.S.3d 8, 10 (1st Dep’t 2023) (holding petitioners who

were not parties to the arbitration proceedings are without standing to challenge the

arbitration decision including the arbitrator’s authority to render the award). Here,

because Plaintiff was not a party to the arbitration proceedings, he is without standing to

challenge any part of the proceedings including Selchick’s authority to preside over the

arbitration proceedings and issue the arbitration decision.

Regarding the documents requested by Plaintiff in both the first and second

subpoenas, initially, there is no merit to Selchick’s argument, Selchick’s Reply at 3, that

Plaintiff failed to timely move to compel production of the documents requested by the

first subpoena, instead waiting more than a year and a half to request the same

documents by serving the second subpoena. Rather, Fed.R.Civ.P. 45(d)(2)(B)(1)

provides that after a requested party objects to the production of documents sought by a

subpoena, “[a]t any time, on notice to the commanded person, the serving party may

move the court for the district where compliance is required for an order compelling

production or inspection.” Accordingly, Plaintiff was not required to object within a

specific amount of time to Selchick’s objection to production.

Selchick maintains, and Plaintiff does not dispute, that the only documents in his

possession pertain to on-going grievance arbitrations between the City of Buffalo, the

Buffalo Police Department, and the Buffalo PBA, Selchick Declaration ¶ 5, and that

Selchick’s “‘disclosure plainly would intrude upon the analytical basis for the arbitrator’s

decision, an area that is generally, and properly, viewed as not subject to inquiry. . . .’”

Selchick’s Memorandum at 6 (quoting Nat’l Hockey League Players’ Ass’n v. Bettman,

1994 WL 38130, at * 7 (S.D.N.Y. Feb. 4, 1994)). Plaintiff, however, maintains the

second subpoena is directed toward Selchick’s potential bias in arbitrating the

disciplinary charges against McCabe and Torgalski. Plaintiff’s Second Memorandum of

Law at 5-9.

“[I]n the context of a claim of arbitral bias, the court may insist that the

challenging party proffer some evidence of arguable misconduct before permitting

discovery, particularly if it is addressed to the arbitrator.” Nat'l Hockey League Players'

Ass'n, 1994 WL 38130, at *7 (citing Lyeth v. Chrysler Corp., 929 F.2d at 899 (citing

Andros Compania Maritina, SA. v. Marc Rich & Co., A.G., 579 F.2d at 702), and Nasta

v. Paramount Pictures Co., 1991 WL 183353 at *4 (S.D.N.Y. Sept. 11, 1991)). In the

instant case, not only has Plaintiff provided absolutely no evidence of arguable

misconduct by Selchick to justify requiring disclosure of the requested documents, but

insofar as Plaintiff seeks the subject documents to establish bias on the part of Selchick

in rendering the arbitration decision Plaintiff’s lack of standing to challenge the

arbitration decision likewise renders Plaintiff without standing to seek the documents on

which Selchick relied in rendering the arbitration decision.

Selchick’s Motion to quash his deposition should therefore be GRANTED and

Plaintiff’s Second Cross-Motion to Compel the deposition should be DENIED.13

3. Plaintiff’s Motions to Compel and to Expedite

Plaintiff moves pursuant to Fed.R.Civ.P. 37 and 30(d)(3) as well as the court’s

inherent power to compel non-party witness John Evans (“Evans”), President of the

Buffalo PBA, to complete his deposition uninterrupted or influenced by outside direction,

including by reading from an index card prepared prior to the deposition by Evans’s

counsel. Plaintiff’s Motion to Compel pertains to Evans’s January 12, 2024, deposition

by Plaintiff, pursuant to the deposition subpoena dated May 27, 2021, directed to

“President John Evans, Buffalo Police Benevolent Association” (“the deposition

subpoena”).14 Appearing at the deposition for Plaintiff was Melissa D. Wischerath, Esq.

(“Wischerath”), with Rodney O. Personius, Esq. (“Personius”), appearing with Evans.

Prior to Evans’s deposition, Personius and Wischerath exchanged e-mails clarifying that

Evans was to be deposed in his individual capacity rather than as President on behalf of

the PBA. See Personius Response Exh. E (Dkt. 101-1 at 16-25). In the final e-mail

exchanged between Personius and Wischerath on January 10, 2024, Wischerath states

that the deposition of Evans is to be “as an individual and not as a representative of the

PBA.” Dkt. 101-1 at 17.

13 A pretrial request to quash a deposition subpoena is a nondispositive matter. See Thomas E. Hoar, Inc.

v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.), cert. denied, 498 U.S. 846 (1990).

14 A copy of the deposition subpoena is filed as Plaintiff’s Second Exh. E (Dkt. 92-6).

Shortly after the deposition commenced, the following colloquy occurred:

Weischerath: So regarding the firearms training, do you want to see a higher

frequency, so that it's not just going on once a year, that it be,

maybe, what, do you have a number? Do you want it to be like

biannual, quarterly?

Evans: Quarterly.

Wischerath: Sorry. Was there just a note handed?

Personius: Yes. You can read it into the record.

Evans: I do not have the authority in my individual capacity to respond to

your question.

Wischerath: Did you type that out, Mr. Personius?

Personius: I did.

Evans Dep. Tr.15 at 38.

The note Personius admitted handing Evans is a 3” by 5” index card (“the first index

card”) on which was typewritten, “I do not have authority in my individual capacity to

respond to your question.” Dkt. 92-1 at 2; Evans Dep. Tr. at 38. Typewritten on a

second index card that not passed to Evans by Personius, was “I have no personal

knowledge regarding this subject.” Dkt. 92-1 at 3; Evans Dep. Tr. at 51. Personius

stated that he intended to hand the notes to Evans whenever Evans was asked a

question that Personius considered was outside the scope of Evans’s personal

knowledge and that Evans’s deposition was limited to questions to be answered by

Evans in his individual capacity, rather than seeking Evans’s opinions, beliefs and

concerns as Buffalo PBA president. Evans Dep. Tr. at 38-40. Personius further stated

that the index cards would not have been needed if Wischerath had complied with

Personius’s earlier request to identify the subjects Wischerath intended to cover at the

deposition. Id. at 41. Evans’s deposition was suspended less than 90 minutes after it

commenced to permit Wischerath to obtain the court’s guidance. Id. at 48-49.

15 References to “Evans Dep. Tr.” are to pages of the January 12, 2024 deposition of Evans, a copy of

which is filed as Plaintiff’s Second Exh. C (Dkt. 92-4).

In support of Plaintiff’s Motion to Compel, Plaintiff argues Personius’s use of the

index cards during Evans’s deposition to limit Evans’s answers to deposition questions

was prohibited by case law, the Local Rules of Civil Procedure for the Western District

of New York, and the undersigned’s Deposition Guidelines. Plaintiff’s Memorandum -

Motion to Compel, at 3-4. In opposition, Evans maintains the index cards were used

only to assist Evans in distinguishing between questions directed to him in his individual

capacity, which were proper, and questions directed to Evans as President of the

Buffalo PBA, which were not proper, Evans’s Response at 1-2, and that motion practice

could have been avoided if Plaintiff had advised Evans of the topics Plaintiff intended to

address during the deposition. Id. In reply, Plaintiff argues that Personius’s

interference with Evans’s deposition was “blatant, improper, and undisputed,” Plaintiff’s

Reply – Motion to Compel at 2-3, there is no right for an attorney to confer or pass notes

regarding objections which should instead be preserved by objection, id. at 3-4, and

Evans’s subsequently asserted excuse pursuant to Fed.R.Civ.P. 32(d)(3)(A) (“An

objection to a deponent's competence--or to the competence, relevance, or materiality

of testimony--is not waived by a failure to make the objection before or during the

deposition, unless the ground for it might have been corrected at that time”) to justify

use of the notes is without merit. Id. at 4-6. Plaintiff further maintains that although the

subpoena Plaintiff served on Evans, a nonparty, was pursuant to Fed.R.Civ.P. 30(a)(1)

permitting the deposition of any person without leave of court, instead of Fed.R.Civ.P.

45(a)(1)(A), Evans conflates the deposition with one pursuant to Fed.R.Civ.P. 30(b)(6)

pertaining to a governmental agency or organization for which advance notice as to the

matters to be raised at the deposition is required. Id. at 6-10. Plaintiff also repeated his

request for sanctions against Evans. Id. at 10-11. In further opposition, Evans

reiterates that pursuant to Fed.R.Civ.P. 32, he was required to assert competency

objections, particularly regarding questions posed to Evans pertaining to his capacity as

President of the Buffalo PBA, lest they be waived. Personius Sur-Reply Declaration ¶¶

3-6.

Preliminarily, Plaintiff’s Motion to Expedite (Dkt. 93), also filed on January 12,

2024, seeks, pursuant to Local Rule of Civil Procedure to the Western District of New

York 7(d), expedited relief on Plaintiff’s Motion to Compel because the Fifth Amended

Scheduling Order then in effect, Dkt. 74), set March 5, 2024 as the deadline for

depositions. Given March 5, 2024 has since elapsed, and a Sixth Amended Scheduling

Order (Dkt. 111) filed May 17, 2024 sets September 11, 2024 as the cutoff for fact

depositions, Plaintiff’s Motion to Expedite is DISMISSED as moot.

With regard to Plaintiff’s Motion to Compel, Rule 30(a) permits a party to depose

any person without leave of court, and Rule 30(a)(1) provides that the “attendance of

witnesses may be compelled by subpoena as provided in Rule 45.” The court observes

that Evans’s attendance at the deposition was pursuant to a Rule 45 subpoena. Rule

30(b)(6), which provides the method for taking the deposition of a corporation,

partnership, or association, requires the deposing party only name the entity to be

deposed subsequent to which “[t]he burden then falls on the named entity to ‘designate

one or more officers, directors, or managing agents, or other persons’ to testify on its

behalf, and these persons must testify as to the matters known to the entity.” Price

Waterhouse LLP v. First American Corp., 182 F.R.D. 56, 61 (2d Cir. 1998) (quoting

Fed.R.Civ.P. 30(b)(6)). “Rule 30(b)(6) of the Federal Rules of Civil Procedure provides

that deposition notices to corporations ‘must describe with reasonable particularity the

matter for examination.’” Henderson v. Rite Aid of New York, Inc., 2017 WL 11724424,

at *3 (W.D.N.Y. July 10, 2017) (quoting Innomeds Labs, LLC v. Alza Corp., 211 F.R.D.

237, 240 (S.D.N.Y. 2002)). “‘The purpose of this rule is to avoid the difficulties

encountered by both sides when the party to be examined is unable to determine who

within the corporation would be best able to provide the information sought.’” Id.

Further, the requirements for deposing an association or entity pursuant to Rule

30(b)(6) also apply to a Rule 45 subpoena compelling a non-party witness’s attendance

at a deposition. Id. In the instant case, given the asserted confusion over whether

Evans was to be deposed as an individual, or on behalf of the PBA as its president, Mr.

Personius could have stated and on the record prior to the deposition the perceived lack

of clarity caused by the deposition subpoena and subsequent e-mails so as to preserve

any objections to questions posed to Evans during the deposition, including those

seeking Evans’s response not as an individual, but as a representative of the PBA. The

issue of clarifying Evans’s status at the deposition, however, was not brought up until

the end of the brief deposition of Evans. See Evans’s Dep. Tr.16 at 35-52. Accordingly,

the court considers Personius’s conduct in providing typewritten notes for Evans’s

guidance in responding to deposition questions.

“‘It is well settled that it is inappropriate for an attorney to influence or coach a

witness during a deposition.’” Ladino v. Cordova, 2023 WL 2915402, at *7 (E.D.N.Y.

Apr. 12, 2023) (quoting Musto v. Transp. Workers Union of Am., 2009 WL 116960, at *1

(E.D.N.Y. Jan. 16, 2009) (collecting cases)). Plaintiff cites no caselaw concerning an

16 References to “Evans’s Dep. Tr.” are to the pages of the transcript of the January 12, 2024 deposition

of Evans, filed as Plaintiff’s Second Exh. C (Dkt. 92-4).

attorney passing a note to a witness during the witness’s deposition, the court’s

research reveals only a single case among all federal courts. In particular, in Mealy v.

Gautreaux, 2019 WL 3216516, at *6 (M.D. La. July 16, 2019), the district court

determined that the defendant’s attorney’s passing a note to a witness during a

deposition,” advising the witness “not to provide factual information with respect to the

existence of a . . . report” was an improper feeding of information to the witness that

“unduly interfered with the deposition, unreasonably prolonged the deposition, and

prejudiced Plaintiff by frustrating the fair examination of the deponent.” Mealy, 2019 WL

3216516, at *6 (citing Hall v. Clifton Precision, a Div. of Litton Sys., Inc., 150 F.R.D. 525,

528 (E.D. Pa. 1993) (“There is no proper need for the witness's own lawyer to act as an

intermediary, interpreting questions, deciding which questions the witness should

answer, and helping the witness to formulate answers.”)).

Further, as relevant, the undersigned’s Deposition Guidelines provide,

(4) Counsel shall not make objections or statements which might suggest an

answer to a witness. Counsels' statements when making objections should be

succinct and verbally economical, stating the basis of the objection and nothing

more.

(5) Counsel and their witness/clients shall not initiate or engage in private off-

the-record conferences during depositions or during breaks or recesses, except

for the purpose of deciding whether to assert a privilege.

Based on a plain reading of the deposition transcript, it is readily apparent that the

provision of an index card bearing a pre-planned response constitutes a statement

made by Evans’s counsel suggesting an answer in violation of deposition guideline 4,

and the passing of the index care could be construed as a “private off-the-record

conference” between Personius and Evans in violation of deposition guideline 5.

The interference with a deposition is grounds for sanctions. See Fed.R.Civ.P.

37(b)(5). Accordingly, Personius and Evans are directed to show cause, not later than

June 24, 2024, why Plaintiff’s attorney fees incurred in connection with the deposition

proceedings on January 12, 2024, and in successfully moving to compel should not be

awarded to Plaintiff. Plaintiff’s response shall be filed not later than July 8, 2024. Oral

argument shall be at the court’s discretion.

Plaintiff’s Motion to Compel is GRANTED.

CONCLUSION

Based on the foregoing, Defendants’ Motion for a Protective Order (Dkt. 79) is

DENIED; Plaintiff’s Cross-Motion to Compel (Dkt. 81) is GRANTED in part and DENIED

in part; Selchick’s Motion to Quash (Dkt. 82) is GRANTED; Plaintiff’s Motion to Compel

(Dkt. 92) is GRANTED; Plaintiff’s Motion to Expedite (Dkt. 93) is DISMISSED as moot;

and Plaintiff’s Second Cross-Motion to Compel (Dkt. 98) is DENIED.

SO ORDERED.

/s/ Leslie G. Foschio

_________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

Dates: May 30, 2024

Buffalo, New York