     Case: 18-60703      Document: 00514743839         Page: 1    Date Filed: 11/30/2018




                      REVISED NOVEMBER 30, 2018

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                      No. 18-60703                          FILED
                                                                    November 29, 2018
                                                                       Lyle W. Cayce
In Re GOVERNOR DEWEY PHILLIP BRYANT                                         Clerk

                                                 Petitioner


     Petition for a Writ of Mandamus to the United States District Court
                    for the Southern District of Mississippi


Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM:*


                                      I.
       This case comes before us on a Petition for Writ of Mandamus. Having
reviewed the briefs and the record, after full oral argument, we deny the
petition without prejudice, for the reasons to be explained.
       The underlying case is a dispute over control of the governance of the
Jackson-Medgar Wiley Evers International Airport. The Jackson Municipal
Airport Authority (JMAA) currently manages and operates the airport, but
control would be transferred to a new board by virtue of Senate Bill 2162,
which was recently passed by the Mississippi Legislature. The new board



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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would be structured differently with a total of nine commissioners, rather than
the current five.
      Although Governor Bryant signed S.B. 2162 into law on May 4, 2016, it
has only nominally taken effect. Federal Aviation Administration policy does
not allow it to consider disputed airport transfers if there is any pending
litigation. JMAA, its Board, the Commissioners, the Jackson Mayor, and the
Jackson City Council sued challenging the legality and constitutionality of S.B.
2162. Among other claims, the plaintiffs allege that Governor Bryant, the
Lieutenant Governor, Madison County, and Rankin County violated the Equal
Protection and Due Process Clauses of the Fourteenth Amendment by passing
S.B. 2162 for discriminatory purposes.
      The case proceeded to discovery. In both his required disclosures under
Rule 26(b) of the Federal Rules of Civil Procedure and his responses to JMAA’s
interrogatories, Governor Bryant identified Chief of Staff Songy as a person
having discoverable knowledge 1 that would tend to support or refute any claim,
defense, or element of damages in the case. In response to a deposition notice
issued to the Governor’s Office under Fed. R. Civ. P. 30(b)(6), the Governor’s
Office designated Drew Snyder, Governor Bryant’s then-Deputy Chief of Staff,
Policy Director, and Counsel, to testify on its behalf. Id. JMAA took the Fed.
R. Civ. P. 30(b)(6) deposition of Governor Bryant’s Office. Petition Ex. 1 at 2.
      Snyder’s deposition lasted nearly seven hours. JMAA was dissatisfied
with the level of detail it received from Snyder in response to several questions,
and determined that “Songy’s deposition [was] necessary to obtain relevant
information that cannot be obtained from any other source.” Response at 5.




      1  At this juncture, Songy was not otherwise listed or designated as a witness to be
called at trial.

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Specifically, JMAA asserts that Snyder’s testimony was deficient in four
respects:
        (1) details regarding the nature and timing of communications between
Chief of Staff Songy and Mississippi State Senator Josh Harkins about S.B.
2162,
        (2) whether Songy had conversations with any of the other legislators (in
the state House or Senate) who sponsored or were involved with S.B. 2162,
        (3) whether Governor Bryant had shared with Chief of Staff Songy
sentiments allegedly expressed to the Governor regarding the need for change
in management at the Airport, and
        (4) the existence and nature of communications between Chief of Staff
Songy and Madison County Board of Supervisors’ attorney Katie Snell.
        The Governor’s Office and JMAA could not reach a compromise, and in
January 2018, JMAA moved to compel the deposition of Chief of Staff Songy.
Governor Bryant opposed the motion and sought a protective order prohibiting
JMAA from deposing Songy. The Governor maintained that JMAA could not
demonstrate the exceptional circumstances necessary to overcome the Chief of
Staff’s high-ranking government official privilege, which limits depositions.
        The magistrate judge denied JMAA’s motion to compel, and granted in
part and denied in part Governor Bryant’s motion for a protective order. First,
the court determined that Chief of Staff Songy is a high-ranking government
official. Second, the court found that JMAA met its burden of “demonstrating
the requisite exceptional circumstances for taking the deposition of [Chief of
Staff] Songy.”
        The court framed its examination with principles lifted primarily from
two cases: Freedom From Religion Found., Inc. v. Abbott (FFRF) No. A-16-CA-
00233, 2017 WL 4582804 (W.D. Tex. Oct. 13, 2017) and In re Fed. Deposit Ins.


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Corp., 58 F.3d 1055 (5th Cir. 1995). Citing FFRF, the magistrate judge
explained that “[c]ourts will generally only consider subjecting a high ranking
official to a deposition if the official has first-hand knowledge related to the
claims being litigated and other persons cannot provide the necessary
information.” 2 For the first prong, the court determined that Snyder’s 30(b)(6)
deposition demonstrated that Chief of Staff Songy had first-hand knowledge of
considerations in the Governor’s Office to change the governance structure of
the Airport and certain communications between the Chief of Staff and several
legislators, as well as Katie Snell. And for the second prong, the court found
that “persons [other than Chief of Staff Songy could not] provide the necessary
information.”
       Turning to the “exceptional circumstances” step, the court considered the
potential burden the deposition would impose upon Chief of Staff Songy and
the Governor’s Office and the substantive reasons for taking the deposition.
The magistrate judge found that JMAA’s “substantive reason for taking
Songy’s deposition is obvious: the 30(b)(6) deposition revealed that Songy is the
only Governor’s Office employee with first-hand knowledge of certain
discoverable information.” 3 Furthermore, any burden on the Chief of Staff or
the Governor’s Office would be minimized by the limitations the court placed
on the Chief of Staff’s deposition, namely, (1) that the deposition topics would


       2 FFRF recognized a two-step test that a proponent must satisfy to depose a high-
ranking government official. First, the proponent must demonstrate that the official has
first-hand knowledge related to the claims being litigated that is unobtainable from other
sources. Second, the proponent must show that exceptional circumstances exist meriting the
deposition. The exceptional circumstances factor itself has three prongs established by In re
FDIC: “the high-ranking status of the deponents, the potential burden that the depositions
would impose upon them, [and] the substantive reasons for taking the depositions.” 58 F.3d
at 1060.
       3 Ostensibly, that “certain discoverable information” concerns the existence and
nature of communications between Chief of Staff Songy and Senator Harkins, Representative
Monsour, other legislators, and Katie Snell.

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be limited to two broad areas, 4 (2) that the deposition would be limited to no
more than two hours, (3) that the Chief of Staff could choose the location of the
deposition, and (4) that both sides would be required to work together in good
faith to find a mutually convenient date and time for the deposition. Governor
Bryant objected to the discovery order in the district court.
       The district court affirmed the magistrate judge’s discovery order. First,
the district court rejected Governor Bryant’s contention that the magistrate
judge applied a “lightweight relevance inquiry” rather than a “heightened
relevance standard that case law prescribes.” The district court determined
that the magistrate judge had applied “the exact legal standard from the exact
case the Governor advances.” Second, the district court disagreed that the
magistrate judge “overlooked” whether there were less burdensome means of
obtaining the information JMAA sought from the Chief of Staff. The court
explained that the magistrate judge had detailed how the less burdensome
method the parties first utilized, the 30(b)(6) deposition, was ineffective. Third,
without any analysis, the district court found that Governor Bryant’s
assertions that the magistrate judge had made “clearly erroneous” factual
findings were “not borne out by the record.” 5


       4 Those broad areas were “(a) Songy’s concept for changing the governing structure of
the Jackson-Evers Airport, and his actions and nonprivileged communications with
individuals regarding his concept; and (b) Songy’s actions and nonprivileged communications
with individuals regarding the management or operation of the Jackson-Evers Airport or S.B.
2162, from January 1, 2014, through May 4, 2016.” The first area (regarding “Songy’s
concept”) is not only extraordinarily broad, it does not appear to arise from the Rule 30(b)(6)
notice. The second area (regarding Songy’s actions and . . . communications”) arises from the
Rule 30(b)(6) notice, but fails to recognize that Songy’s deposition, if allowed, would be limited
to only those questions Snyder could not answer.
       5In this section, the district court quotes from Governor Bryant’s brief to characterize
the Governor’s “clearly erroneous factual findings” contentions at a high level—that the
Governor was asserting that the magistrate judge ignored relevant record evidence, casually
brushed aside other evidence, and that deposing Chief of Staff Songy would impose an undue
burden. Governor Bryant devoted a substantial portion of his brief to these claims and details
the specific inferences and conclusions that he considered incorrect. The district court does
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       Governor Bryant now requests that this court issue a writ of mandamus
ordering the district court to vacate its July 20, 2018 order to the extent
necessary to grant Governor Bryant’s motion for a protective order prohibiting
Songy’s deposition.
                                     II.
       Governor Bryant must satisfy three requirements for this court to issue
the “extraordinary remedy of mandamus.” In re Lloyd’s Register North Am.,
Inc., 780 F.3d 282, 288 (5th Cir. 2015). First, Governor Bryant must have “no
other adequate means to attain the relief he desires.” Cheney v. U.S. Dist.
Court for Dist. Of Columbia, 542 U.S. 367, 380 (2004) ((quoting Kerr v. U.S.
Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)). Governor Bryant
must show both that he has no other means to review the district court’s order
when it is entered and that the ordinary appeals process would be inadequate.
See id. Second, Governor Bryant has to demonstrate a “clear and indisputable”
right to the writ. Cheney, 542 U.S. at 381 (quoting Kerr, 426 U.S. at 403). If
the district court clearly abused its discretion, then Governor Bryant’s “right
to issuance of the writ is necessarily clear and indisputable.” In re Volkswagen
of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en banc). Third, this court “must
be satisfied that the writ is appropriate under the circumstances.” Cheney, 542
U.S. at 381. In making this determination, the court keeps in mind that “writs
of mandamus are supervisory in nature and are particularly appropriate when
the issues also have an importance beyond the immediate case.” In re
Volkswagen, 545 F.3d at 319.




not specifically address the Governor’s claims and concludes generally that “they are not
borne out by the record.” The district court does cite the relevant standard of review, namely,
that “[a] finding of fact is clearly erroneous only if on the entire evidence, the court is left
with the definite and firm conviction that a mistake has been committed,” (quoting Am.
Cancer Soc. v. Cook, 675 F.3d 524, 528 (5th Cir. 2012)).

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        This court “limit[s] mandamus to only ‘clear abuses of discretion that
produce patently erroneous results.’” In re Lloyd’s Register, 780 F.3d at 290
(quoting In re Volkswagen, 545 F.3d at 310). A mandamus petitioner “must
show not only that the district court erred, but that it clearly and indisputably
erred.” In re Occidental Petroleum Corp., 217 F.3d 293, 295 & n.7 (5th Cir.
2000) (Smith, J.). “An abuse of discretion exists only when there is [a] definite
and firm conviction that the court below committed clear error of judgment in
the conclusion it reached upon a weighing of the relevant factors.” Conkling v.
Turner, 18 F.3d 1285, 1293 (5th Cir.1994) (quoting Hoffman v. Merrell Dow
Pharms., Inc. (In re Bendectin Litig.), 857 F.2d 290, 307 (6th Cir. 1988))
(internal quotations omitted). In re F.D.I.C., 58 F.3d 1055, 1060 (5th Cir. 1995).
        Involuntary depositions of highly-ranked government officials are only
allowed when “exceptional circumstances . . . exist.” Id. In determining
whether exceptional circumstances exist, a court must consider (1) “the high-
ranking status of the deponents,” (2) the potential burden that the depositions
would impose upon them,” and (3) “the substantive reasons for taking the
depositions.” Id. As an overarching consideration, the court must also consider
that “it will be the rarest of cases . . . in which exceptional circumstances can
be shown where the testimony is available from an alternate witness.” Id. at
1062.
                                      III.
        There are several important aspects of this analysis that the magistrate
judge failed to fully consider. We therefore deny the petition for writ of
mandamus, but we do so without prejudice to the renewal of the petition, if
needed, after the magistrate judge adequately addresses:
        a) whether the information desired can be sought from alternative
        witnesses or must exclusively come from the Chief of Staff;


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      b) whether the legislators involved in the communications can be
      deposed;
      c) whether the information desired can be obtained in another form; and
      d) if it cannot be obtained in another form, whether the scope of the
      inquiry can be more closely tailored to target only the specific questions
      raised at the Rule 30(b)(6) deposition.
(A) Possibility of other witnesses
      It appears the magistrate judge and district court did not fully consider
the underlying policy reasons for limiting depositions of high-ranking
government officials. In re Holder, 197 F.3d at 313–14. High-ranking
government officials are the subject of or involved in unusually high numbers
of lawsuits and therefore should be protected from undue burdens regarding
the frequent litigation, which is why the “exceptional circumstances” analysis
exists in the first place.
      A key aspect of the “exceptional circumstances” analysis is whether the
information desired can be obtained from other witnesses. The magistrate
judge did not consider whether alternate witnesses could be available because
he incorrectly concluded that the testimony must come from a witness in the
Governor’s office: “Governor Bryant contends that Plaintiffs could depose the
individuals Songy met with rather than Songy himself. This argument,
however, misses the point. Governor Bryant is a party to this lawsuit, and
Plaintiffs are entitled to discover the factual position of a party opponent.
Regardless what other people may claim was said in communications with
Songy, Plaintiffs are entitled to discover this information from Governor
Bryant’s staff member who has personal knowledge on the subject.” (internal
citations and quotes omitted). We disagree with the plaintiff’s “entitlement” to
discover answers from a high-ranking witness in the Governor’s office. As long


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as an alternative witness can provide the relevant information, there is no
reason he or she cannot be called. In this case, the particular requested
information is largely regarding Songy’s specific communications with
legislators and others whose identities are readily known to counsel. The
magistrate judge does not provide any individual analysis as to whether each
of these people can be deposed instead, thus avoiding the deposition of a high-
ranking government official.
      Additionally, the district court affirmed the magistrate judge’s decision
without further consideration of alternate witnesses. The district court seems
to suggest that because the plaintiffs attempted to get the information from
one witness already, they are excused from their burden of proving exceptional
circumstances regarding Songy’s potential deposition: “The Governor then
contends that the Magistrate ‘overlooked’ whether there were less burdensome
means of obtaining the information the plaintiffs seek from Mr. Songy. But the
Magistrate explained in detail how the less burdensome method the parties
first utilized – a Rule 30(b)(6) deposition – proved ineffective when the
Governor’s designee answered the plaintiffs’ question about Mr. Songy’s
actions with ‘I don’t know’ . . . The Magistrate fairly concluded that ‘the
designee simply lacked knowledge sufficient to provide the information.’”
While we do not now question whether that further information may be
required beyond what Snyder was able to provide, we do not agree that one
single attempt relieves the parties of the need to show that there are no
alternate witnesses available to answer these questions, in order to prove that
exceptional circumstances exist.
(B) Possible availability of legislators
      The magistrate judge should also consider the implications of the
parallel litigation springing from the same underlying matter, Jeffrey


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Stallworth v. Dewey Bryant, et al, 6 as it affects the availability of the legislators
to be deposed. The most obvious alternative witnesses are the legislators with
whom Songy communicated regarding the legislation.
      In this parallel litigation, the plaintiffs have already served eight
document subpoenas on the legislators but have not attempted deposition
subpoenas. The legislators objected, invoking legislative privilege, but the
magistrate judge 7 already overruled that objection multiple times. It is quite
possible that an assertion of privilege for a deposition subpoena would also be
overruled. Although the legislators appear to be resisting discovery, the
magistrate judge should explicitly consider their availability as alternative
sources.
(C) Possibility of other ways to gather information
      Moreover, the magistrate judge did not adequately consider alternative
means of gathering the desired information. Particularly when, as in this case,
the desired information is limited, it is likely that written answers to
questions, given under oath, would be sufficient. See, e.g., In re FEMA Trailer
Formaldehyde Prod. Liab. Litig., No. MDL 07-1873, 2009 WL 1883062 (E.D.
La. June 24, 2009).
D) Scope of the inquiry
      The scope of any further questioning, written or otherwise, should
expressly remain within the ambit of the previously noticed Rule 30(b)(6)
parameters, because the stated need for Songy’s testimony is solely the
inadequacy of Snyder’s answers as a 30(b)(6) designee. To verify their
pertinence to the 30(b)(6) inquiry, the list of written inquiries may be pre-
approved by the magistrate judge before submission to Songy, all based on the


      6   No. 18-60487.
      7   The same magistrate judge presides over both cases.

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existing Snyder transcript. The questions posed likewise should specifically
track those propounded to Snyder, for which his responses are deemed
inadequate by the court. Under the current Order, Songy would improperly be
subject to interrogation far afield from the specific questions asked of Snyder.
See supra at 5, n.4.
                                      IV.
      At this time, on the showing made, a writ of mandamus would be
premature. We DENY THE PETITION WITHOUT PREJUDICE, giving the
magistrate judge the opportunity for further consideration. If either party
seeks review following reconsideration, the appeal will be assigned to this same
administrative panel in accordance with this court’s usual procedures.




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