By Nicole Bryson, J.D. and Jeff Birren, Senior Writer.
Introduction
Donald Murray, (“Murray”), is a tenured professor of kinesiology and former five-time champion head wresting coach at State University of New York State University College at Brockport, (“SUNY Brockport”). After a fifty-year career, an investigation by SUNY Brockport and the NCAA threatened his professional status. He was first removed from his positions but was later reinstated as professor and head coach. However, his employment as head wrestling coach ended on August 11, 2021. The NCAA further decided to suspend Murray from all coaching activities for three years among other repercussions on January 14, 2022. At the end of the suspension, he would be eighty-one, making his return to coaching unlikely. Murray sued SUNY Brockport on July 18, 2022 for age discrimination and retaliation pursuant to 42 U.S.C. § 1983, and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, et seq. He sought to lift his coaching suspension, undoing his “de facto” termination, and receive monetary damages. During the litigation, Murray sought to compel both the deposition of SUNY Brockport President, Hedi MacPherson (“MacPherson”), and the production of documents. The Magistrate Judge denied the deposition request but ordered production of the withheld documents. (Murray v. State Univ. N.Y., 6:22-CV-06306 CJS CDH, (7-8-2025), 2025 U.S. Dist. LEXIS 12943.))
Background
Murray alleged that SUNY Brockport commenced a pretextual investigation sanctioned by MacPherson and others, into the wrestling program on September 12, 2020. It was announced in a national press release. SUNY Brockport accused Murray of using his physical education courses to engage student athletes in wrestling activities before the first permissible practice date. It also asserted that Murray contacted a local off campus gym to provide a training facility for the wrestling team. Murray contended that the student-athletes made their own training schedule and Murray only initiated contact with the gym and briefly attended training. The investigation further examined whether team members participated in an outdoor ultimate frisbee game without wearing masks. Murray self-reported a Covid exposure unrelated to the frisbee game on September 10, 2020, as soon as he was aware of the possible exposure and initiated a one-day quarantine and contact tracing per SUNY Brockport guidelines. No team member tested positive.
Murray noted similar violations by other programs including men’s and women’s cross country at off- campus parties, the football team practicing on campus prior to the semester, and ice hockey using an off-campus rink for practice two days per week before their season. There was no national press release, no formal investigation, no repercussions for coaches of these other programs and no NCAA contact.
SUNY Brockport self-reported Murray and the wrestling program to the NCAA and recommended sanctions including banning Murray from all wrestling activities. The NCAA added a fourth charge of practicing before medical clearance. The NCAA determined that over four years, forty-nine athletes did not undergo the required physical evaluation before participating. In conjunction with the initial violations found by SUNY Brockport, the NCAA declared a major violation and adopted the penalties proposed by SUNY Brockport. Murray was suspended from all wrestling activities.
Murray subsequently sued SUNY Brockport, athletic director, Eric Hart and Dr. Kathryn Wilson, VP for Enrollment Management, (“Defendants”), but not the NCAA. He alleged that the investigation and findings were a pretext to remove him.
Motion To Compel
On July 30, 2024, Murray moved to compel responses to his document demands and to set a date for the deposition of MacPherson. The Defendants never sought a protective order. They opposed the deposition of MacPherson, a “high ranking government official”, pursuant to Lederman v. N. Y.C. Dep’t of Parks & Recreation, (“Lederman”), 731 F. 3d 199, 2003 (2nd Cir. 2013). Murray did not contest that MacPherson is a high-ranking government official. In his Reply, Murray never mentioned Lederman.
Instead, he focused on other cases cited by opposing counsel. Murray stated that he exhausted other avenues of discovery including depositions of others involved before seeking MacPherson’s deposition, unlike Bogan v. City of Boston, 489 F. 3d 417, (1st Cir 2007)). Similarly, Murray distinguished cases where there was no indication of personal involvement in decision making or first-hand knowledge by the prospective witness. (Chin v. New York City Dep’t of Corrections, 741 F. Supp.3d 18, 23, 2024 (EDNY 2024)). Murray believed MacPherson made the decision to suspend him and the wrestling program. SUNY Brockport insisted that if was MacPherson’s “Cabinet Group” that made those decisions.
The Court’s “Discussion”
The Court recited the usual Ode To Discovery. It quoted Federal Rules of Civil Procedure 26(b)(1) that a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” One prior case defined “relevance”, (Mitchell v. Fishbein, 227 F.R.D. 239, 242 (S.D.N.Y. (2005)), as evidence that “reasonably could lead to other matters that could bear on any issue that is or may be in the case.” Although the party seeking discovery has the burden of showing relevance, if the opposing party objects, it bears the burden to show why such discovery should be denied. (Shiber v. Centerview Partners, LLC., No. 21-CV-3649 (ER), 2023 U.S. LEXIS 72297.” Furthermore, “it is exceedingly difficult to demonstrate an appropriate basis for an order barring the taking of a deposition.” (Kamps v. Fried, Frank, Harris, Shriver & Jacobsen, LLP., 2010 LEXIS 132749 (2010)). Ordinarily a witness “cannot escape examination by denying knowledge of relevant facts” because the other party “is entitled to test the witnesses lack of knowledge.”
This all changes, however, when the party seeking to evade testifying is a “high-ranking government official”. (Lederman, 731 F. 3d at 203.) Those witnesses occupy a privileged position in the Second Circuit. They are “generally shielded from depositions” because they have “greater duties and time restraints” than others. The burden of proof flips and now placed on the party seeking discovery. It is “a heavy burden” that requires “exceptional circumstances.” (Moriah v. Bank of China LTD, 72 F. Supp. 3d 437, 440 (S.D.N.Y. 2014)).
Murray conceded that MacPherson was a high-ranking government official, but sought discovery because MacPherson was “personally involved” in the actions that go to the heart of his claims. Murray agreed that the deposition would take an hour and could be conducted virtually, thus minimizing any inconvenience. The defendants retorted that “mere involvement” by MacPherson” was “insufficient” to overcome the case-created bar to discovery. Her declaration stated that she had “no unique knowledge or information regarding any of the issues surrounding this lawsuit”. It does not state that she had “no knowledge”, merely no “unique knowledge.” It also states that she “personally did not make the decision to suspend” Murray. It does not deny involvement with the decision, or approval of it. Did MacPherson “impersonally” make the decision?
This was enough to shield MacPherson from obligations borne by others residing in the United States. Murray had to prove “the exceptional circumstances that justify the high-level deposition.” (Loc. 2507, Uniformed EMTs, Paramedics & Fire Inspectors v. City of N. Y., 2025 U.S. 117591, “quotations omitted.”) Even if MacPherson “was the ultimate decision-maker” that was “not enough.” (Boggs v. Town of Riverhead, 2020 U.S. LEXIS 117591). If the requested information is “discernible from other sources”, that suffices to cut off the deposition. Others were involved, so it matters not that MacPherson may have made the decisions regarding Murray. He will be forced to figure out from her staff what she was thinking.
II. Document Production
The second issue was the lack of Defendants’ document production. During the informal discovery conference, Murray’s request for documents was raised, but no formal ruling was entered. Murray moved for an order compelling the Defendants to produce communications between SUNY Brockport and the NCAA and other documents described in an email from Murray’s counsel to defense counsel on March 25, 2025. The Defendants did not oppose the motion to compel. Their April 1, 2025, Response stated, “that they ‘were ‘endeavoring to comply with all demands and seek(ing) additional time to do so, not to exceed thirty days.’” The “failure” to oppose the request led the Court to grant Plaintiff’s request and gave the Defendants fourteen days to produce the “requested documents.” Despite having gained months of delay, that was not enough. The Defendants returned to Court on July 22, 2025, requesting still more time to respond. This was the thirteenth time in the case that they sought and received an extension of time. The Court gave the Defendants one additional week. It also set a deadline of December 15, 2025, to file summary judgment motions (Order, July 23, 2025).
Editorial
Covid killed people, so if Murray violated NCAA Covid rules, strict discipline was called for. The restrictions applied to every NCAA institution. However, the Order is an example of a correctly decided case, Lederman, having unfortunate consequences.
In Lederman, several artists were denied permission to display expressive art on public property. They were bound by content-neutral regulations that did not violate the First Amendment. The regulations had not been applied to the plaintiffs by the Mayor or former Deputy Mayor. During discovery, they sought to depose both. The District Court denied the motion and the Circuit affirmed. The plaintiffs “did not identify with particularity the information they needed, nor did they contend that Bloomberg and Skyler had first-hand knowledge about the litigated claims or that the relevant information could not be obtained elsewhere”. (Lederman, 731 F. 3d at 203, citing Bogan v. City of Boston, 489 F.3d at 423.) Lederman keeps plaintiffs with a grudge against government from deposing high ranking officials without demonstrating that the possible deponent had any involvement in the underlying issues or even knew anything about it.
However, that doctrine seems out of place here. School presidents often make the decision to hire or fire a coach. Coaches and presidents are responsible for following NCAA rules, and the critical task of athletic fundraising. The application of Lederman here means that what MacPherson may have said will be hearsay reported by her underlings. This may have been a pretext by MacPherson, but her state of mind will be hidden. All are witnesses are equal under the law, but apparently some witnesses are more equal than others.
Those defending state schools in New York now have a shield at their disposal. They can bring a Lederman protective order motion to preclude the school president from being deposed. Furthermore, there is nothing in the Murray decision that would necessarily limit the protective order to the president. Vice presidents will next seek cover. Who else is too big to be deposed?
Moreover, although Murray was a coach, the opinion can also be used in cases brought by student-athletes. A school president may decide to suspend a member of the crew team for untoward behavior, but not the school’s starting quarterback for identical behavior, knowing full well that he or she is now beyond the indignity of a deposition in the Second Circuit, though the Federal Rules of Civil Procedure suggest otherwise.
However, Murray’s indignation concerning SUNY Brockport’s “self-reporting” seems odd. NCAA members are required to self-report potential rule violations to the NCAA. NCAA Constitution, Article I, Principles, Section E, that states in part: It is the responsibility of each member institution to report all rules violations to its NCAA division and conference in a timely manner and to cooperate fully with enforcement efforts.”
Conversely, Murray could have quoted the very same Section in his motion as it ends by stating: “Responsibility for maintaining institutional control ultimately rests with the institution’s campus president or chancellor.”
