BINGHAMTON — A federal judge sharply criticized Delaware County and its supervisors Friday, May 2 over what he called a “lackadaisical approach” to court-ordered discovery, issuing a pointed directive to proceed with long-delayed depositions in a civil suit brought by Decker Advertising Inc., parent company of The Reporter.
The First Amendment retaliation lawsuit, filed on Dec. 4, 2023, alleges that Delaware County officials violated The Reporter’s constitutional rights by revoking its status as an official county newspaper in retaliation for its coverage of the county and county business. The designation provided critical revenue through legal notice revenue.
The lawsuit has dragged on since 2023 in the U.S. District Court for the Northern District of New York, where Judge Miroslav Lovric now presides over discovery (evidence issues) and delays in production from Delaware County to The Reporter.
“This has been like slogging through quicksand,” Lovric said during the hearing, voicing his frustration with Delaware County’s repeated delays. “Unless they would like to default on this litigation, [the county] has to be engaged — and has to be engaged on our schedule, not theirs,” Lovric said regarding the scheduling of depositions, or pretrial examinations.
The May 2 hearing centered on a motion by The Reporter to compel depositions of three witnesses: Wayne Shepard, Wayne Marshfield, and Wayland “Bud” Gladstone. According to plaintiff’s student attorney Alex Venditti, supported by supervising attorney Heather Murray of the Cornell Law School First Amendment Clinic, and student attorney Celina Rivernider, repeated attempts to schedule the depositions since mid-March had been met with “radio silence” from Delaware County. Four attempts were made by The Reporter’s attorneys to schedule the depositions since mid-April.
“We reached out again on April 30,” Venditti told the court, after the county filed a response to the motion to compel. “We have not received a response on that either,” he reported.
Representing the defense, attorney Lindsey Hazelton of Hancock Estabrook cited staffing shortages and overlapping obligations as an explanation for the delays.
“It’s been a struggle,” Hazelton said. “That’s not an excuse, but there has not been an attempt to not schedule these depositions.”
Lovric was unconvinced.
“I’m unimpressed with the response from your clients,” he said. “I will not extend [the] June 23 deadline for completion of all e-discovery, period.”
The court then ordered the following deposition schedule: Wayne Shepard on May 14, Wayne Marshfield on May 15 or May 16, and Wayland “Bud” Gladstone on May 23. Lovric also authorized Decker Advertising to recall any of the witnesses for further testimony should additional discovery, or evidence, not be provided in advance of depositions and/or additional information arises through pending electronic discovery.
Lovric also confirmed he received ex-parte documents (without disclosing them to opposing counsel) and a privilege log pursuant to an earlier order. A decision on the privileged status of those materials is forthcoming.
Murray also stated that The Reporter has asked for documents from the people to be deposed be produced by May 2 received no response to a letter inquiring whether those documents would be produced in the requested time frame. She noted the county’s weekly mandated status report said 2,000 documents were being produced May 2, but did not specify what those documents were.
Murray added that it remains unclear whether The Reporter will receive any documents from individual deponents before the scheduled depositions. Murray asked defense counsel, Hazelton, to clarify the document production status, saying, “Maybe Ms. Hazelton can inform us today whether that is slated to come to us… or whether, for some reason, there’s still a delay in those documents that we’ve been requesting for a few weeks.”
With the clock now ticking toward the June 23 e-discovery deadline, Lovric made his position unmistakably clear: “That is the deadline. I will not extend it any further.”
Lovric also reminded the county’s attorneys that they are supposed to be turning over evidence (discovery) on a rolling, weekly basis.
For related reporting visit the-reporter.net
