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1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------x UNITED STATES OF AMERICA, Plaintiff, -against- TOWN OF OYSTER BAY and TOWN SUPERVISOR JOHN VENDITTO, Defendants.

MEMORANDUM AND ORDER

14-CV-2317 (GRB)(SIL) --------------------------------------------------------------x

STEVEN I. LOCKE, United States Magistrate Judge:

Presently before the Court in this housing discrimination action is Plaintiff’s the United States of America (“Plaintiff” of the “Government”) motion to compel: (1) depositions of certain Town councilmembers, consultants, and the Town clerk (“Town Officials”); (2) depositions of former attorneys the Town retained or employed (“Town Attorneys”); and (3) deposition responses from Town Planning Consultant Harold Mayer (“Mayer”) and Town Councilmember Anthony Macagnone (“Macagnone”) whose counsel instructed them not to answer certain questions at their depositions based on attorney-client privilege and/or the attorney work product doctrine.

1

See

Plaintiff’s Motion to Compel Depositions and Other Discovery (“Pl. Mot.”), DE [115]. On April 10, 2014, Plaintiff brought this action against the Town of Oyster Bay (“the Town”) and Town Supervisor John Venditto (“Venditto” and together “Defendants”) in his official capacity, asserting claims under the Fair Housing Act, 42 U.S.C. § 3601,

et seq.

(the “FHA”) alleging the Defendants engaged in, and continue to engage in, a

1

At oral argument, the Government withdrew its requests to order responses from Lewis Yevoli and David Portman.

See

Sept. 23, 2021 Hr’g Tr. at 38:22-25, Docket Entry (“DE”) [122].

Case 2:14-cv-02317-GRB-SIL Document 130 Filed 01/03/22 Page 1 of 17 PageID #: 762

2 pattern or practice of discrimination against African Americans through the implementation of two affordable housing programs to benefit seniors and new home buyers known as “Golden Age” and “Next Generation” respectively.

See

Complaint (“Compl.”), DE [1]. Defendants deny liability.

See

DE [44]. For the reasons set forth herein, Plaintiff’s motion is: (1) granted as to the depositions of Town Councilmembers Joseph Saladino, Michele Johnson, Louis Imbroto, Thomas Hand, Laura Maier, Vicki Walsh, and the current administrator of the Golden Age and Next Generation Programs, but denied as to the Town Clerk Richard LaMarca; (2) granted as to the depositions of Town Attorneys and Consultant Kenneth Berkman, Leslie Bennett, Leonard Genova, and Steven Marx regarding certain correspondence addressed below; and (3) denied on all other grounds.

I.

BACKGROUND

In 1993 and 2004 respectively, the Town implemented two housing programs, Golden Age and New Generation (together the “Programs”), that are still in effect today.

See

Compl. ¶¶ 1, 10, 22. The Programs were designed to encourage developers to build affordable housing for senior citizens and first-time buyers, and they give a preference to Town residents and their relatives.

Id

. ¶ 1. Because the Town is mostly white, the Government alleges that the Programs’ preferences effectively discriminate against African Americans in violation of the FHA.

Id

. Plaintiff lodges both intentional discrimination and disparate impact claims.

See

DE [34] at 2-3. On November 22, 2016, the parties jointly requested that discovery be stayed pending the resolution of criminal charges against Defendant Venditto.

See

DEs [81],


3 [82]. At that point, Plaintiff had taken 15 depositions of current and former Town officials and consultants.

See

Defendants’ Response in Opposition re Motion to Compel (“Def. Opp.”), DE [118], at 1. District Judge Arthur D. Spatt granted that motion, and the matter was stayed through September 11, 2019.

See

DEs [84], [93].

2

After the case resumed, the parties revisited an impasse regarding certain discovery.

See

Pl. Mot. at 1. The Government filed a motion to compel depositions of current Town Officials who purportedly have knowledge related to the creation and administration of the Programs.

Id

. In addition, the Government is seeking to compel depositions of former retained and employed Town Attorneys and a Town Consultant who either drafted, had knowledge of the drafting, or received two opinion letters regarding the legality of the residency preferences for Next Generation.

Id

. at 3; Plaintiff’s

Supplemental Brief in Further Support of the United States’ Motion to Compel Discovery (“Pl. Suppl.”) at 2 n.2, DE [127]. The first of the two letters is a eleven-page draft dated October 1, 2004 that analyzes of the legality of the Next Generation Program and concluded, based on certain assumptions, that if law was “implemented in a nonexclusionary fashion” it would not violate the FHA. Pl. Suppl. Am. Ex. 1 at 8, 11. The second letter is the final one and a much shorter conclusory version dated October 4, 2004 which determined that “as drafted,” the residency preferences of Next Generation were lawful under the FHA.

See id

. at 12-13.

2

This case was subsequently reassigned to District Judge Gary R. Brown.

See

Jan. 23, 2020 Electronic Order.
