Low v. Whitman

207 F.R.D. 9, 52 Fed. R. Serv. 3d 1321, 2002 U.S. Dist. LEXIS 9954, 2002 WL 1142207
CourtDistrict Court, District of Columbia
DecidedMay 29, 2002
DocketNo. 00-2793 (JMF)
StatusPublished
Cited by18 cases

This text of 207 F.R.D. 9 (Low v. Whitman) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Low v. Whitman, 207 F.R.D. 9, 52 Fed. R. Serv. 3d 1321, 2002 U.S. Dist. LEXIS 9954, 2002 WL 1142207 (D.D.C. 2002).

Opinion

MEMORANDUM OPINION

FACCIOLA, United States Magistrate Judge.

This case is before me for all purposes including trial. Ready for resolution is Defendant’s Motion for Protective Order Preventing the Depositions of Ray Spears and Ann Goode and Certification of Conference (“Defs.Mot.”). For the reasons articulated below, defendant’s motion will be granted in part and denied in part.

BACKGROUND

Plaintiff, Seth Thomas Low (“Low”), claims that he was discriminated against on the basis of gender and age when he was not selected for a GS-15 position with the United States Environmental Protection Agency (“EPA”). Defendant seeks a protective order preventing the plaintiffs from taking the deposition of Ray Spears, Deputy Chief of Staff of the EPA (“Spears”).1

DISCUSSION

I. Legal Standard

Federal Rule of Civil Procedure 26(c) provides:

Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense

Any party seeking to limit discovery under Rule 26(c) must demonstrate that, on balance, the harm to it outweighs its opponent’s interest in discovering the facts:

To do so, the movant must articulate specific facts to support its request and cannot .rely on speculative or conclusory statements ... Moreover, in the case of a protective order related to deposition testimony, courts regard the complete prohibition of a deposition as an “extraordinary measures [ ] which should be resorted to only in rare occasions” ... Accordingly, courts apply a balancing test weighing the movant’s proffer of harm against the adversary’s “significant interest” in preparing for trial.

[11]*11Jennings v. Family Management, 201 F.R.D. 272, 275 (D.D.C.2001) (citations omitted).

II. Defendant’s Position

Defendant argues that Spears does not have any knowledge relevant to the claims or defenses in this matter because, in October 1997, Spears had nothing to do with the complained of non-selection. Id. at 6.

Defendant further contends that plaintiff has no need for the testimony of Spears since he has already deposed: (1) David O’Connor, Director of the Office of Human Resources and Organizational Services at the time of plaintiffs non-selection and now Deputy Assistant Administrator for the Office of Administration and Resources Management, (2) Michael Stahl, Deputy Assistant Administrator of the Office of Administration and Resources Management, and (3) Sylvia K. Lowranee, Principal Deputy Assistant Administrator of the Office of Enforcement and Compliance Assurance. Defendant represents that, like O’Connor, Stahl and Lawrence were extensively examined about diversity action plans. Defs. Reply at 6. In addition, plaintiff will have the opportunity to take the deposition of Ann Goode, the one time Director of the Office of Civil Rights; Goode too can speak to the significance of these plans to the manner in which EPA made its promotion decisions.

Third, defendant argues that senior government officials such as Spears should not be subjected to depositions in routine cases since public policy favors allowing high level officials to perform their jobs without the burdensome task of providing testimony in the numerous lawsuits filed against the government. Id. at 8.

Finally, defendant contends that Spears’ deposition is being sought for reasons unrelated to plaintiffs claim of non-selection:

A review of these complaints leaves it beyond any reasonable dispute that plaintiffs true reason for noticing the deposition of Ray Spears is to get him into the witness chair to question him on matters ranging from a report submitted to the EPA’s Office of Inspector General to agency assertions of deliberative process privilege made in a Freedom of Information Act Request,

Id. at 9.

In essence, therefore, defendant is arguing that plaintiff is fishing for information regarding Spears’ involvement in the settlement negotiations that occurred during the administrative phase of the case. Id. at 10. This, defendant argues, is outside the permissible scope of discovery.

III. Plaintiffs Position

Plaintiff argues that Spears’ testimony would be relevant to plaintiffs claim because Spears was working in the Office of General Counsel at the time plaintiffs EEO complaint was filed and because he “should have first-hand knowledge of the effects and implementation at the time of the agency’s ‘diversity’ initiatives and, specifically, how such initiatives affected employment decisions and the existence and outcomes of any EEO challenges to such decisions.” Plaintiff's Opposition to Defendant’s Motion for Protective Order Preventing the Depositions of Ray Spears and Ann Goode (“Plains.Opp.”) at 6. Plaintiff also contends that Spears is not sufficiently highly ranked within the agency to qualify for the type of immunity defendant claims he is due. Id. Finally, plaintiff argues that, although he also seeks the testimony of O’Connor, Spears has knowledge of the implementation of the agency’s diversity initiatives that O’Connor does not. Id. at 9.

IV. Analysis

Defendant argues that the deposition of Spears should be prohibited since he is a highlevel government official and thus his time is more valuably spent performing the duties that accompany his position. Acknowledging that Spears is not a cabinet official or agency head, defendant nonetheless claims that courts have protected the taking of depositions from lesserranked officials. Defs. Mot. at 8.

First, defendant cites the case of Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575 (D.C.Cir.1985). In Simplex, the court upheld the ALJ’s decision not to compel the depositions of the Solicitor of Labor, the Secretary of Labor’s Chief of Staff, the [12]*12Regional Administrator for the Administration and the Administration’s Area Director. Without any discussion, the court merely stated that plaintiff failed to demonstrate that the information was not otherwise available. Thus, the opinion provides no guidance as to the qualifications of a “high-level” government official.

Next, defendant cites the case of Alexander v. FBI, 186 F.R.D. 1 (D.D.C.1998). In Alexander, the court granted defendant’s motion for a protective order staying the depositions of three officials classified as “Assistants to the President,” a position described as second in seniority to the White House Chief of Staff.

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Bluebook (online)
207 F.R.D. 9, 52 Fed. R. Serv. 3d 1321, 2002 U.S. Dist. LEXIS 9954, 2002 WL 1142207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/low-v-whitman-dcd-2002.