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Attorney for Potsdam suggests Hillary can drop lawsuit if deposition is shared with police

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POTSDAM — An attorney defending village police against a defamation lawsuit brought by Oral “Nick” Hillary suggests in court documents that if Mr. Hillary does not want information gathered during a deposition in the civil matter used to possibly incriminate him in the unsolved murder of a 12-year-old boy he could drop the suit.

Otherwise, Thomas J. Mortati argues that Mr. Hillary’s upcoming deposition should not be subject to a requested protective order, meaning it could then be shared with investigators trying to determine who strangled Garrett J. Phillips on Oct. 24, 2011, at the youth’s Market Street apartment.

Mr. Hillary filed state Supreme Court action in Canton in September 2012, claiming police detained him illegally and damaged his reputation by making statements implicating him in the death of the youth. The lawsuit was moved to U.S. District Court, Syracuse, in November 2012 because Mr. Hillary is further claiming that his federal constitutional rights were violated.

Mr. Hillary’s attorney, Mani C. Tafari, Queens, filed a request for a protective order in late December, maintaining that the village is trying to use information obtained from Mr. Hillary’s deposition in a “criminal context.” The claim is based on testimony Mr. Hillary provided in a pre-action hearing in April 2012, which Mr. Tafari subsequently learned through discovery was shared with investigators. An investigator reviewing the testimony concluded that Mr. Hillary allegedly provided numerous “deceptive” answers.

Magistrate Judge David E. Peebles has yet to rule on the protective order, giving both sides an opportunity to argue in writing why it should or should not be granted.

Mr. Mortati argues that Mr. Hillary opened the door to having the testimony made available to investigators when he filed a notice of claim against the village and submitted to questioning in the pre-action hearing. A notice of claim is a necessary precursor to any lawsuit against a municipality. Municipalities then can investigate the circumstances behind the claim, including questioning the potential plaintiff under oath, to see if there is an opportunity for settlement before a lawsuit is filed.

Mr. Mortati contends, among other things, that, by filing the notice of claim and voluntarily testifying under oath, Mr. Hillary waved his Fifth Amendment right not to incriminate himself under Federal Rules of Civil Procedure and, therefore, should not be allowed to invoke the right at a deposition.

He argues that two police officers, who are also defendants, will be allowed to be present at the deposition and to expect that they not be allowed to use any evidence obtained from it to possibly assist with the homicide investigation is “absurd.”

“If (Mr. Hillary) wishes to avoid the potential pitfalls of submitting to a required deposition under the FRCP, he can discontinue his suit,” Mr. Mortati wrote to Judge Peebles.

Mr. Tafari counters that when Mr. Hillary testified at the pre-action hearing he was unaware that he was still under investigation in connection with Garrett Phillips’s death and had no reason to believe his testimony could be used to incriminate him. He maintains that Mr. Hillary never intended to waive any of his rights and that the hearing represented a “distinct proceeding” from the lawsuit. Citing case law, he states that waiving one’s rights at one stage of a proceeding is not a waiver of that right at other stages.

Judge Peebles has decided that Mr. Hillary’s deposition, like his pre-action testimony, will be videotaped, something Mr. Mortati sought, but Mr. Tafari opposed.

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