Greater Birmingham Ministries v. Merrill

321 F.R.D. 406, 2017 WL 2471063
District Court, N.D. Alabama·Decided April 19, 2017·No. 2:15-cv-02193-LSC·Published·Cited by 5 cases

Opinion

MEMORANDUM OF OPINION AND ORDER

L. Scott Coogler, United States District Judge

I. Introduction

In this action to enjoin enforcement of Alabama’s Photo ID Law, Ala. Code § 17-9-30, the only remaining defendant, Alabama’s Secretary of State John Merrill (“Secretary Merrill” or “the Secretary”), has moved this Court for a protective order preventing him from having to sit for a deposition, or in the alternative, for a protective order limiting his [408]*408deposition to no more than one hour and limiting it to only those topics where Plaintiffs have demonstrated that he possesses unique personal knowledge related to the subject matter of this litigation, (Doc. 153.) Secretary Merrill’s justification for this request is that he is protected by a type of limited immunity that shields high government officials from depositions unless the party seeldng the deposition proves first that the evidence is not available from some other deponent, Having reviewed the submissions by Secretary Merrill and Plaintiffs, and for the reasons discussed herein, the Court finds that the motion for a protective order is due to be granted in part and denied in part.

II. Legal Standard

Parties are permitted to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Though the scope of discovery is broad, Rule 26(c) authorizes a court, for “good cause,” to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(e)(1). “The party requesting a protective order must make a specific demonstration of facts in support of the request as opposed to conclusory or speculative statements about the need for a protective order and the harm which will be suffered without one,” Dunford v. Rolly Marine Serv. Co., 233 F.R.D. 635, 636 (S.D. Fla. 2005) (citing Gulf Oil v. Bernard, 452 U.S. 89, 102 n. 16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981)). “A court must balance the competing factors involved in determining whether good cause has been shown.” Id. (citing Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985)). Because the burden of showing good cause to preclude a deposition altogether is a heavy one, protective orders prohibiting depositions are rarely granted. See, e.g., Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979) (“It is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error.”).

However, an exception has been recognized when the witness is a high government official. A party must demonstrate “exigent circumstances” or “special need” to justify deposing a high government official concerning his or her reasons for taking official actions. In re United States, 985 F.2d 510, 512-13 (11th Cir. 1993) (per curiam); see also In re United States, 624 F.3d 1368, 1374 (11th Cir. 2010) (“[Tjhere must be a showing of special need before a high-ranking executive official can be compelled by the judiciary to appear.”). Exigency is required before allowing their testimony because “[h]igh ranking government officials have greater duties and time constraints than other witnesses,” and they should be “protect[ed]... from the constant distraction of testifying in lawsuits.” In re United States, 985 F.2d at 612.

The foregoing principles led the Eleventh Circuit in In re United States to grant a mandamus order compelling the district court to quash a subpoena issued to the then-Food and Drug Administration (“FDA”) Commissioner, Dr. David Kessler. Id. Defendants in that case had sought to dismiss an indictment for unlawful introduction of unapproved drugs and misbranded pharmaceuticals into interstate commerce by claiming that the FDA had selectively prosecuted them. Id. at 510-11. To that end, they subpoenaed Dr. Kessler for deposition. Id. The Eleventh Circuit directed the district court to quash the subpoena, however, because testimony was available from other witnesses, and because Dr. Kessler did not become the Commissioner until four years after the time the defendants’ case was investigated by the FDA and two years after it was referred to the Justice Department for prosecution. Id. at 513.

Similarly in In re United States, the Eleventh Circuit allowed the Assistant Administrator for Water to appear in lieu of the Administrator of the U.S. Environmental Protection Agency at a hearing related to implementation of the Clean Water Act because the Assistant Administrator for Water is “the primary official responsible for fulfilling the national responsibilities of the Agency under the Clean Water Act” and actually [409]*409prepared the determination at issue in the litigation. 624 F.3d at 1373.

Nonetheless, several opinions from district courts within the Eleventh Circuit make it clear that there is no per se rule forbidding deposing high government officials. For example, in Gray v. Kohl, the district court held that a sheriff could be deposed in a challenge to a statute prohibiting the distribution of Bibles on a public sidewalk within 500 feet of a school safety zone. No. 07-10024-CIV, 2008 WL 1803643, at *1-2 (S.D. Fla. April 21, 2008). Acknowledging that the sheriff is a high government official, the court noted that “[t]he question, then, is whether the likelihood that [the sheriff] has personal knowledge of pertinent facts is sufficiently remote to constitute good cause to proscribe his deposition with a protective order or by other means available.” Id. at *1. The district court determined that the plaintiff could depose the sheriff as to the manner and methods by which the statute is enforced, reasoning:

Enforcement of the statute depends on the policies in place within Monroe County and the meaning that the Monroe County Sheriffs Office assigns to the statute. Sheriff Roth disavows any knowledge concerning policy making within the Monroe County Sheriffs Office and its enforcement and interpretation of F.S.A. § 810.0975. However, given Sheriff Roth’s executive oversight and high level leadership and command responsibility over the Monroe County Sheriffs Office, Sheriff Roth may not so casually disavow his knowledge over matters such as policy making that typically occur at an executive level within an organization....

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Greater Birmingham Ministries v. Merrill, 321 F.R.D. 406, 2017 WL 2471063 (N.D. Ala. 2017).

321 F.R.D. 406 (Greater Birmingham Ministries v. Merrill) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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