MICII EL A.

CRDOZO
Corporation C ouniel THE CrrY OF NEW YoRK
LAW DEPARTMENT
S1IER1. R. NFL F ELI)
IOU CI lURCH Si REET
Senior Counsel
NEW YORK. NY 10007 Administrative la Dnision
Phone (212) 788l035
Fax 7j2l2i
l 4 9I-9
sneufeld a law n e gay
June 1.2011
By Email
Hon. Richard J. Sullivan
United States District Judge
Southern District of New York
500 Pearl Street, Room 640
New York, New York 10007
su11ivannysdchambersnysd.uscourts.gov

Re: Lederman, et. al. v. NYC Dep’t of Parks and Recreation, et al.,
Docket No. 10 CV 4800 (RJS)

Dear Judge Sullivan:

This office represents the defendants in the above-referenced action.

Julie Milner,
counsel for plaintiffs, and I submit this letter jointly, pursuant to
Section 2G of your Honor’s
Individual Rules, to outline our dispute regarding the proprie
ty of plaintiffs taking the
depositions of Mayor Bloomberg and former Deputy Mayor Edwar
d Skyler in this action. Ms.
Mimer and I first talked about these depositions on May 11, 2011,
and have had several follow-
up conversations since then, and we are unable to resolve this issue
without your Honor’s
intervention. As your Honor is aware, this case involves a challen
ge to the constitutionality of
regulations promulgated by the Parks Department in July 2010
to address the vending of
expressive matter (e.g., books and artwork) in the City’s parks (the
expressive matter vending
regulations’). Among other things. plaintiffs assert that there
is no legitimate basis for the
expressive matter ‘ending regulations and that they were promu
lgated in retaliation fbr
plaintiffs prior vending activity.

As detailed below, plaintiffs believe that the Mayor and former

Deputy Mayor
have information necessary to their case. Defendants submit
that because neither Mayor
Bloomberg nor former Deputy Mayor Skyler possess any unique knowle
dge about the basis for
the Parks Departments’ promulgation of the expressive matter vendin
g regulations plaintiffs do
not have a basis for deposing the Mayor and former Deputy Mayor
.
Turning first to former Deputy Mayor Skyler, plaintiffs submit
that they are
entitled to depose Mr. Edward Skyler because in plaintiffs’ response
to interrogatories at number
4, Ed Skyler was noted as a City official with specific firsthand
knowledge of the targeting,
 Hon. Richard J. Sullivan
June 1,2011
Page 2

pretextual and retaliatory claims in this lawsuit. Mr. Skyler’s testimony is

\ital to the plaintiffs’
case for these reasons:

Mr. Skyler worked at the New York City Department of Parks and Recrea
tion
from 1995 to 1999. where he sered as a press secretary for the
New York City Park
Commissioner, and later as a member of Mayor Giuliani’s press office.
In his capacity as press
secretary. Mr. Skyler personally communicated to Mr. Lederman the
New York City Parks
Departrnenfs policies on independent artist vendors in the parks.
Mr. Skyler took part in
negotiations between Mr. Lederman and then Parks Commissioner Henry
Stern regarding artist
vendors in the parks, made public statements against independent artist
vendors, and actively
advocated on behalf of the Parks Department in a conflict that gave rise
to Lederman, et al. v.
Guiliani in 1998. Mr. Skyler even had a physical confrontation with Mr. Lederm
an when he tried
to prevent Lederman from speaking and holding up a painting of Mayor
Giuliani at a press
conference involving Parks Commissioner Stem.

Mr. Skyler was appointed press secretary in Mayor Bloomberg’s administratio

n in
2002. and was later appointed to Deputy Mayor for Administration in 2005.
As one of Mayor
Bloomberg’s top aides. he has firsthand knowledge of current Parks Depart
ment policies. On
numerous occasions Mr. Skyler has conversed with Mr. Lederman personally
regarding Parks
Department policies towards independent artist vendors. At the very beginn
ing of the
Bloomberg administration, Mr. Lederman wrote to the Mayor to complain
about an incident
where City Sanitation trucks illegally seized and crushed street artists’ display
s throughout
SoHo. In the letter dated April 10, 2002, Lederman cites Ed Skyler as a long-ti
me contact with
extensive firsthand knowledge of himself and of the ARTIST group. Moreo
ver, in 2004
Lederman had a conversation outside City Hall with Mr. Skyler about the settlement
negotiations
in Lederman el a!. i’. Giuliani. Mr. Skyler told Lederirian the Bloomberg admin
istration was
withholding a settlement of that case so as to discourage Lederman’s political activit
y. Lederman
then wrote the Mayor a letter about this conversation claiming it would actuall
y backfire and
cause an increase in the protests. A few days after informing the Mayor of his
press secretary’s
comments. a settlement was reached. Ed Skyler is known to have strong person
al opinions about
art he finds offensive. In April 2005, while he was Mayor Bloomberg’s press
secretary, Mr.
Skyler tried to have art he disapproved of removed from a SoHo gallery. The
art had a similar
theme to Mr. Lederman’s well-known political art criticizing Mayor Giulian
i as a dictator.
Lederman has also prominently displayed satirical portraits of Mayor Bloom
berg. a number of
which were featured in newspaper and TV coverage of his protests. Mr. Skyler
has echoed both
the current and former Parks Commissioners in expressing an intense dislike for
Mr. Lederman’s
art. Third, plaintiffs submit that Mr. Skyler, with his extensive backgr
ound in the Parks
Department as a press secretary, and as an adversarial party to Mr. Lederm
an in previous
litigation and personal encounters, has used his current position to influence
Parks Department
rules and policies with respect to independent artist vendors in the parks.

With respect to Mayor Bloomberg. plaintiffs submit that Mayor Bloomberg

must
be deposed in this case because he is a named defendant and he has crucial
information that can
only he obtained by deposing him. This crucial information that only the Mayor
can provide is
 Hon. Richard J. Sullivan
June 1.2011
Page 3

needed h the plaintiffs to substantiate their allegation

s. First. Mayor Bloomberg has had
numerous conversations and e-mail correspondences with
Mr. Lederman regarding independent
artist vendors in the parks since 2002. These c-mails were
turned over to the City pursuant to
their production request. The Mayor told Lederman that
he reads his emails. but often doesn’t
agree with them. This makes the Mayor a direct witness
in this case.
Second, a recording of a conversation between Lederman
was turned over to the City pursuant to their docu and the Mayor. which
ment request. shows Mayor Bloomberg
interceding with police officers preventing Mr. Lederman
from protesting anti-street artists’
policies at City Hall in November 2008. The Mayor at first
joked with police that Lederman was
trying to kill him and that he was ‘crazy as hell.’ Third,
in a recording of a conversation
between Lederman and the Mayor, which was turned over
to the City pursuant to their document
request. Mayor Bloomberg made statements to Mr. Lede
rman supporting limits on artist vendors
outside of the Metropolitan Museum of Art so that the store
owners who pay taxes will not lose
business. Fourth, Mayor Bloomberg sponsored Intro.
160 in an attempt to impose permit
requirements on independent artist vendors, the very type
of law that had been previously struck
down as unconstitutional by this Court in Lederman et a!
v. Giuliani.
Fifth, Mayor Bloomberg has arranged for conciliatory meet
between Adrian Benepe, the current Parks Commissione ings and negotiations
r, and Mr. Lederman at times when the
press was most sympathetic to the artists. Sixth, Mayor
Bloomberg is a prominent member of
the Central Park Conservancy, an organization which
since 1998 has had exclusive authority
over concessions and vending in Central Park, and is belie
ved to play a pivotal role in Parks
Department policies discouraging independent artist vend
ors, and Mr. Lederman in particular.
from operating in Central Park. Seventh, Mayor Bloo
mberg has exercised his authority to
determine which artists display their works in public art
installations in New York City parks,
and it is the plaintiffs’ contention that this treatment of his
favored artists at the expense of non-
favored artists violates the Fourteenth Amendment of the
Constitution.
Eighth, Mayor Bloomberg has openly opposed Mr.
Ledermans position on
independent artists vendors operating in the parks, and
it is believed that he had numerous
discussions with Mr. Skyler, Mr. Benepe, and various park
conservancy executives prior to their
testifying in favor of the new rules limiting independent
artist vendors in the parks. Ninth, there
is substantial evidence to support the contention that Mayor
Bloomberg has actively supported
the privatization of public parks by granting non profi
t park conservancies the authority to
manage City parks, which in turn solicit corporate vendors
and developers to operate in the parks
at the exclusion of independent artist vendors. It is plainti
ffs’ contention that this is part of an
overall policy’ designed to maximize the revenue gene
rating potential of park space by granting
almost exclusive use of that space to corporate conc
essionaires and vendors. Tenth, in a
recording of a conersation between Lederman and the Mayor
, which was turned o er to the City
pursuant to their document request, the Mayor hims
elf approached Lederman to personally’
discuss the situation at the Met. The Mayor stated that the
sidewalk outside the Met was croded
due to illegal vendors and that artists contributed to the
culture of the City. When Lederman told
him that enforcement was the way to deal with the prob
lem of illegal vendors, the Mayor replied
 Hon. Richard J. Sullivan
June 1.2011
Page 4

that there vas not enough time or resources to deal with the proble
m and that police officers did
not like to give tickets to them.

Eleventh, in a lengthy and significant NY Times feature article

dated October 23.
2005 “ART: The Arts Administration” The Mayor’s interest in
using the arts as part of his policy
agenda is described in detail. Mr. Lederman is quoted in the article,
as is Mr. Skyler. The article
cites the Mayor’s open hostility towards street artists: Some
argue that while Mr. Bloomherg
may favor established venues, he has been openly hostile to
artists plying their wares on the
street, even after a court ruling in their favor. Twelfth, on April
23, 2010. the Mayor publically
stated that the courts have been sympathetic to the artists on the
First Amendment issue, but that
he had a case coming up with the parks in which the court will
be sympathetic to the City.
Plaintiffs arc entitled to probe this issue with the Mayor under
oath to ascertain whether he was
referring to our current court case.

In opposition to plaintiffs’ notices of deposition for the Mayor

and former Deputy
Mayor, defendants submit that it is well-settled that high-ranking
governmental officials are
generally entitled to immunity from deposition concerning matter
s about which they have no
unique personal knowledge. See, ç,g, In re FDIC, 58 F.3d 1055,
1060-6 1 (5th Cir. 1995) (Court
quashed deposition notices to FDIC directors when no special
circumstances to warrant the
deposition were presented); Sweeney v. Bond, 669 F.2d 542
(8th Cir.), cerL denied, sub nom.,
Schenberg v. Bond, 459 U.S. 878 (1982) (Governor of Missou
ri need not be deposed absent
showing that he possessed information that could not be obtain
ed from others); Murray v.
County of Suffolk, 212 F.R.D. 108 (E.D.N.Y. 2002) (Depos
ition of Suffolk County Police
Commissioner precluded where there was nothing to suggest
that the information sought from
the Commissioner was unavailable from other sources); Lederman
v. Giuliani, 2002 U.S. Dist.
LEXIS 19857, *5..6 (S.D.N.Y. 2002) (Depositions of high-ranking
city officials who did not
have unique personal knowledge that would assist the plaintiffs
in the furtherance of their claims
were precluded); New York v. Oneida Indian Nation of N.Y., 2001
U.S. Dist. Lexis 21616, ‘11-
12 N.D.N.Y. 2001) (Court refused to compel deposition of Govern
or and his Secretary where
there was no indication that the Governor’s and his Secreta
ry’s knowledge was unique and
personal); Marisol A. v. Giuliani, 1998 U.S. Dist. LEXIS 3719
(S.D.N.Y. 1998) (Deposition of
Mayor Giuliani precluded because “[tjhe information plainti
ffs seek from the deposition of the
Mayor can be obtained through other sources”); L.D. Leasing Corp.
v. Crimaldi, 1992 U.S. Dist.
LEXIS 18683 (E,.D.N.Y. 1992) (Mayor may not be deposed where
he has no relevant first-hand
knowledge). “While this limited immunity is traditionally
reserved for current high level
officials, it has been applied to requests to depose former high
level officials,’ Bey v. City of
New York, 2007 U.S. I)ist. LEXIS 76464, *34 (S.D.N.Y,
2007), and the depositions of former
high ranking government officials should not be granted lightly
.” Gil v. County of Suffolk. 2007
U.S. Dist. LEXIS 50931, *4 (E.D.N.Y. 2007). Indeed, deposi
tions of former government
officials are only granted where the former official has been person
ally involved in the events at
issue in the case. See id.

Accordingly, depositions of high level government officials

are permitted only
upon a showing that “(1) the deposition is necessary in order to
obtain relevant information that
 1-Ion. Richard .1. Sullivan
June 1.2011
Page 5

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.” Marisol A. v. Giuliani.
supra, 1998 U.S. Dist. LEXIS 3719 at *7 citing Martin v. Valley National Bank, 140 F.R.D,
291. 314 (S.D.N.Y. 1991). As Judge Ward noted in Marisol the “first prong of this standard,
which requires that the deposition be necessary to obtain relevant information not available from
other sources, is strictly imposed. Courts, before permitting the involuntary deposition of a high
ranking government official, require that the party seeking the deposition demonstrate that the
official’s testimony will likely lead to the discovery of admissible evidence and is essential
to
that party’s case.” 1998 U.S. Dist. LEXIS 3719 at *7..8 (citations omitted), Judge Ward
additionally noted that “courts only permit the deposition of a high ranking government official
if he has unique personal knowledge that cannot be obtained elsewhere.” 1998 U.S. Dist.
LEXIS
3719 at *8. Moreover, allowing for the Mayor’s and former Deputy Mayor’s depositions
in
cases where they have no unique relevant knowledge “would open up the floodgate
of
depositions, consuming much of the Mayor’s time — a clear interference with his ability to
perform his governmental functions.” Marisol A., supra, 1998 U.S. Dist. LEXIS 3719 at *17.

Here, neither Mayor Bloomberg nor former Deputy Mayor Skyler had any
personal involvement in the promulgation of the expressive matter vending regulations, nor
do
they have any unique personal knowledge of the basis for the promulgation of the rules.
Significantly, plaintiffs will be deposing Parks Commissioner Adrain Benepe, the final decision-
maker with respect to the expressive matter vending regulations, on June 16, 2011. Moreover,
none of the many reasons asserted by plaintiffs in support of their assertion that they need
to
depose the Mayor and former Deputy Mayor even suggest that these officials have any unique
knowledge about the rationale behind the expressive matter vending rules, and defendants submit
that none of the over 10,000 pages of documents turned over to plaintiffs during discovery even
remotely suggest involvement from the Mayor or former Deputy Mayor in promulgating
the
rules. While Mayor Bloomberg recalls vaguely hearing that the Parks Department was drafting
rules regarding expressive matter vending, former Deputy Mayor Sklyer, who left City
service
on April 30, 2010, prior to final promulgation of the rules, has no recollection of the regulations
at all. Should your Honor deem it necessary, defendants can obtain declarations from the
Mayor
and former Deputy Mayor to this effect, and submit them in conjunction with a formal motion
for protective orders precluding these depositions pursuant to Rule 26(c) of the Federal Rules
of
Civil Procedure.

In conclusion, plaintiffs request that your Honor permit the depositions of the
Mayor and former Deputy Mayor to go forward and defendants request that your Honor either
preclude their depositions for the reasons set forth in this letter or, in the alternative,
permit
defendants to file a formal motion for protective orders pursuant to F.R.C.P. 26(c).

Respectfully submitted,
(7

‘ Sheryl R. Neufeld V
Assistant Corporation Counsel
cc: Julie Mimer. Esq.