Warzon v. Drew

155 F.R.D. 183, 22 Media L. Rep. (BNA) 1925, 29 Fed. R. Serv. 3d 289, 1994 U.S. Dist. LEXIS 7126, 1994 WL 227023
CourtDistrict Court, E.D. Wisconsin
DecidedMay 17, 1994
DocketNo. 93-C-179
StatusPublished
Cited by13 cases

This text of 155 F.R.D. 183 (Warzon v. Drew) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Warzon v. Drew, 155 F.R.D. 183, 22 Media L. Rep. (BNA) 1925, 29 Fed. R. Serv. 3d 289, 1994 U.S. Dist. LEXIS 7126, 1994 WL 227023 (E.D. Wis. 1994).

Opinion

DECISION and ORDER

MYRON L. GORDON, District Judge.

Before the court are the following discovery motions: (1) “Motion for a Protective Order to Quash Subpoenas Served Upon Wisconsin Governor Tommy G. Thompson and Secretary of the Department of Administration James R. Klauser”; and (2) Darryl Enriquez’ “Non-Party Motion to Quash.” Both of the motions will be granted.

The underlying action stems from Ms. Warzon’s termination on February 4, 1993, from her position as the controller for Milwaukee County. In her complaint, Ms. War-zon alleges that such termination was unlawful in that it violated her employment contract and her right to due process under the Fourteenth Amendment to the United States Constitution, and was done in retaliation for commenting on the operation of the Milwaukee County Health Care Plan in violation of her First Amendment right to exercise free speech.

Deposition subpoenas were served by the plaintiff, on the Governor, the Secretary and Mr. Enriquez, a newspaper reporter employed by the Milwaukee Journal. None of the subpoened witnesses is a party in this action. Each of the subpoenas directed the witness to appear for a deposition on March 31, 1994, and to produce various designated documents. In response to Ms. Warzon’s subpoenas, the witnesses filed the motions presently before the court.

Rule 26(b)(1), Federal Rules of Civil Procedure, establishes the general scope and limits of discovery. The rule states:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action---- It is not ground for objection that the information sought will [185]*185be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

I. Motion of the Governor and the Secretary

The subpoena directed to the Governor commands him to appear and produce:

[a]ny and all documents or notes ... including without limitation by way of this specification, any and all datebook entries, minute book entries, agenda items, informal or handwritten notes, and/or calendars, of, pertaining to, concerning, memorializing, or recording meetings and/or telephone conversations involving [the Governor] and or James R. Klauser, and William R. Drew, and/or P. Thomas Ament, or either one of them, for the period of time between October 15, 1992 and the present.

The subpoena directed to the Secretary is in substantially the same form except that the production request relates to documents concerning:

meetings and/or telephone conversations about Milwaukee County’s budget and state financial support for Milwaukee County and involving [the Secretary], and/or Nicholas Hurtgen, and/or Gov. Tommy G. Thompson, and William R. Drew, and/or P. Thomas Ament, or either one of them, for the period of time between October 15, 1992 and the present.

In affidavits accompanying their joint motion for a protective order, the Governor and the Secretary each states that he has no relevant information or knowledge concerning the facts and issues of Ms. Warzon’s underlying civil lawsuit. (Notice and Motion for a Protective Order, Exs. 3 and 4.) Furthermore, the Governor and Secretary each claims that as a high ranking government official he is privileged from being subject to depositions absent extraordinary circumstances.

In response, Ms. Warzon does not dispute the right of the Governor and the Secretary to claim this privilege; rather, she argues that extraordinary circumstances exist in this case which justify deposing the Governor and the Secretary.

In general, high ranking government officials enjoy limited immunity from being deposed in matters about which they have no personal knowledge. The immunity is warranted because such officials must be allowed the freedom to perform their tasks without the constant interference of the discovery process. In re U.S., 985 F.2d 510, 512 (11th Cir.), cert. denied sub nom. Faloon v. U.S., — U.S. -, 114 S.Ct. 545, 126 L.Ed.2d 447 (1993); Kyle Engineering Co. v. Kleppe, 600 F.2d 226, 231-32 (9th Cir.1979). Before the involuntary depositions of high ranking government officials will be permitted, the party seeking the depositions must demonstrate that the particular official’s testimony will likely lead to the discovery of admissible evidence and is essential to that party’s case. Sweeney v. Bond, 669 F.2d 542, 546 (8th Cir.), cert. denied sub nom. Schenberg v. Bond, 459 U.S. 878, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982). In addition, the evidence must not be available through an alternative source or via less burdensome means.

Ms. Warzon contends that the depositions of the Governor and the Secretary would help her determine whether there was an agreement between Mr. Drew and the Thompson administration pursuant to which the County Executive of Milwaukee County, P. Thomas Ament, would “remain neutral” should Milwaukee Mayor John Norquist challenge the Governor in the 1994 election. (Plaintiffs Memorandum Supporting Subpoenaed Testimony at 2-3, 7.) Ms. Warzon does not claim to have any personal knowledge that this deal was actually made; instead, she states that she was told about the deal by a co-employee, Earl Hawkins. (Warzon Aff. at 409-10.)

Ms. Warzon maintains that the testimony of the Governor and the Secretary is necessary to her case because “if Mr. Hawkins did, ..., tell [her] that the State would help the County resolve its Health Care Plan funding problem in exchange for the County Executive’s neutrality in a 1994 Norquist-Thomp-son race, then that would tend strongly to support [her] allegation that she was fired [186]*186due to her statements on the Health Care Plan.” (Plaintiffs Memorandum Supporting Subpoenaed Testimony at 7.) (Emphasis in original.)

Whether Mr. Hawkins did or did not tell Ms. Warzon about the existence of any deal is a matter within the knowledge of Mr. Hawkins — not the Governor or the Secretary. When deposed, Mr. Hawkins denied any knowledge of a deal between Mr. Drew and the Thompson administration and denied making a statement to Ms. Warzon about the alleged deal. (Brief in Support of Motion for a Protective Order, Ex. C at 145-49.)

That Ms. Warzon has been unable to obtain any direct evidence to corroborate her “deal” theory does not entitle her to interrogate the Governor and the Secretary. This is especially true in this case where the record discloses that deposing the Governor and the Secretary would not yield any testimony to corroborate Ms. Warzon’s “deal” theory. The Governor and the Secretary each submitted an affidavit asserting that the arrangement described by Ms. Warzon was never reached nor discussed. (Notice of and Motion for a Protective Order, Ex. 3 at ¶ 6 and Ex. 4 at ¶¶ 5 and 6.) Aside from unsubstantiated hearsay, Ms. Warzon has not produced any evidence to the contrary.

In my opinion the testimony of the Governor or the Secretary is not likely to lead to the discovery of admissible evidence nor is it essential to Ms. Warzon’s action.

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Cite This Page — Counsel Stack

Bluebook (online)
155 F.R.D. 183, 22 Media L. Rep. (BNA) 1925, 29 Fed. R. Serv. 3d 289, 1994 U.S. Dist. LEXIS 7126, 1994 WL 227023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warzon-v-drew-wied-1994.