UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA  L E D
SHIRLEY SHERROD, )  0 g 
Chlk. U.S. Dlstrlct & Bankruptcy
) C(Mffs for the Distrlct of Co|umbla
Plaintiff, )
)
v. ) Civil Case No. 11-00477 (RJL)
)
SUSANNAH BREITBART et al., )
)
Defendants. )

MEMo NDUM oPINIoN
Juneq ,2014[1)1¢.#117]

The pending motion to quash arises out of an action for defamation, false light,
and intentional infliction of emotional distress. Compl. 1 l [Dkt. #1-2]. Plaintiff Shirley
Sherrod alleges that a blog post and video excerpts published by Andrew Breitbartl and
Larry O’Connor depicted her as a racist and led to her being forced to resign from her job
as the Georgia State Director for Rural Development for the United States Department of
Agriculture ("USDA"), a post to which the Obama Administration appointed her in 2()()9.
]a’. Sherrod and O’Connor have noticed subpoenas to Secretary of Agriculture Thomas J.
Vilsack, a third party. Sec’y Mot. to Quash, Ex. J [Dkt. #1 17-1 l]; Sec’y Motion to
Quash, Ex. K [Dkt. #117-12]. The United States moves to quash those subpoenas. Sec’y
Mot. to Quash [Dkt. #l 17]. For the reasons described herein, the United States’ motion

is DENIED.

' Susannah Breitbart was substituted as a defendant in this action at a status conference on October 16,
2013, after the 2012 death of her husband, Andrew Breitbart. See Mot. to Substitute Party [Dkt. 68]. For
clarity, l include Anderw Breitbart’s first name where appropriate

1

BACKGROUND

On Ju1y 19, 2010, Andrew Breitbart published a blog post containing embedded
video clips of excerpts from a speech Sherrod gave to the NAACP in the spring of 2010.
Joint Meet and Confer Statement at 2 [Dkt. #81]. The video was introduced by a series
of slides, including slides that stated "Ms. Sherrod admit[ted] that in her federally
appointed position, overseeing over a billion dollars . . . [s]he discriminates against
people due to their race." Compl. 1111 35-36; Breitbart Answer 1111 35-36 [Dkt. #37].
Short1y before Andrew Breitbart published the blog post, O’Connor posted the video
clips to his You'l`ube account. Joint Meet and Confer Statement at 2.

Later that day, Secretary of Agrieulture Thomas Vilsaek was made aware of the
video excerpts. U.S. Status Conf. l\/[em., Ex. B [Dkt. #89-3]; U.S. Status Conf. Mem.,
Ex. C at 2 [Dkt. #89-4]. Secretary Vilsack has acknowledged that he "asked for and
accepted [plaintiff’s] resignation" that evening. U.S. Status Conf. Mem., Ex. B. The
next day, July 2(), 2010, the NAACP released the full video of Sherrod’s speech,
O’Connor Answer 11 80 [Dkt. #38], which made apparent Sherrod was rete1ling a story
that had transpired years earlier. The Secretary called Sherrod on July 21, 2010,
apologized to her, and discussed the possibility of Sherrod taking a different position at
the USDA. U.S. Status Conf. l\/Iem., Ex. C at 1. Approximately a month later, the
Secretary met with Sherrod in person, again proposing a potential return to the USDA,
but Sherrod declined. U.S. Status Conf. Mem., Ex. A at 1-2 [Dkt. #89-2].

Ms. Sherrod filed this suit in February 201 1 in the Superior Court of the Distriet of

Columbia. Compl. Defendants removed it to federal court in Mareh 2011. Notice of

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Removal [Dkt. #1]. An interlocutory appeal challenging this Court’s decision to deny
defendants’ motion to dismiss delayed the start of discovery for approximately two years.
See Notiee of Appeal [Dkt. #41]. Our Cireuit affirmed the denial of the motion to
dismiss in the summer of 2013. Mandate of USCA [Dkt. #64]. Fact discovery began in
earnest shortly thereafter with an initial eye toward completion in May 2014, Seheduling
Order [Dkt. #82], but it has been mired in disputes since then.

The parties have pursued extensive discovery, with original document requests
asking for documents spanning time frames of over four years. See, e.g., U.S. Status
Conf. Mem., Ex. E at 8-12 [Dkt. #89-6]; U.S. Status Conf. Mem., Ex. F [Dkt. #89-7];
U.S. Status Conf. Mem., Ex. G [Dkt. #89-8]. The parties have noticed over 10
depositions of current and former senior government officials, U.S. Status Conf. Mem. at
1 [Dkt. #89], including the depositions of four former White House officials, WH Mot. to
Quash [Dkt. #l 1 ]], and two sitting Congressmen, Congress Mot. to Quash [Dkt. #108].
Defendant O’Connor, in specfic, has sought particularly wide-ranging discovery,
including requests to Sherrod and third parties related to the Pz'gforcz’ v. Glz`ckman
litigation. Sherrod’s Mot. for Protective Order [Dkt. #113]; Sherrod’s Mot. for Protective
Order, Ex. 2 at 10 [Dkt. #113-2].

Naturally, both sides have subpoenaed the USDA for documents. U.S. Status
Conf. Mem. at l. Sherrod requested 10 categories of documents from June 2009 through
the time of production, U.S. Status Conf. Mcm., Ex. E at 8-12, while defendant O’Connor
requested 73 categories of documents through two subpoenas, including some that

reached back to July 2008, U.S. Status Conf. l\/lem., Ex. F; U.S. Status Conf. l\/Iem., Ex.

3

G. After months of negotiating, the USDA appears to have agreed with Sherrod and
O’Connor on search protocols in response to their subpoena, but submits it will take
months to fully complete document gathering, review, and production, not counting, of
course, any challenges by the parties to claims of attorney-client, work product, and/or
executive privilege.z U.S. Mar. 13, 2014, Response at 5 [Dkt. #97] (indicating that
loading documents onto a platform to be searched could take up to 180 days, before
review and production). Indeed, the search protocol calls for USDA to search the emails
of 50 custodians, including searches over a three-year time frame for the term "Sherrod"
and searches of 70 terms for a more limited period in July 2010. U.S. Mar. 13, 2014,
Response at 3-4. To say the least, both sides, in this Court’s judgment, have launched
discovery requests greatly disproportionate to the specific factual issue(s) that must be
resolved at the USDA.

In addition, both plaintiff Sherrod and defendant O’Connor have noticed Secretary
Vilsack for an oral deposition. Sec’y Mot. to Quash, Ex. J; Sec’y Mot. to Quash, Ex. K.
The United States now moves to quash those subpoenas. See’y Mot. to Quash.

ANALYSIS

Federal Rule of Civil Procedure 26(b)(1) allows parties to "obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense." Fed.

R. Civ. P. 26(b)(l). "Generally speaking, ‘relevance’ for discovery purposes is broadly

2 The government has indicated at recent status conferences that some documents have been and will
continue to be made available, see, e.g., May 27, 2014, Hearing Tr. at 28-31 [Dkt. # 121-1], but has not
submitted any formal representation of any shorter time period in which the current requests, as they
stand, may be comp1eted.

construed." Fooa’ Lz'on, Inc. v. United Fooa’ & Commercz'al Workers Int’l Union, 103 F.3d
1007, 1012 (D.C. Cir. 1997).

Alongside these general statements of broad discovery power, courts recognize a
need to limit certain requests for discovery, including requests for oral depositions of
high-level government officials. "[S]ubjecting a cabinet officer to oral deposition is not
normally countenanced." Peoples v. U.S. Dep ’z of Agrz`c., 427 F.3d 561, 567 (D.C. Cir.
1970). "[T]op executive department officials should not, absent extraordinary
circumstances, be called to testify regarding their reasons for taking official actions."
Si`mplex Tz`me Recora’er C0. v. Sec ’y ofLabor, 766 F.2d 575, 586 (D.C. Cir. 1985) (citing
United States v. Morgan, 313 U.S. 409, 422 (1941)). "High ranking government officials
have greater duties and time constraints than other witnesses," Irz re United States, 985
F.2d 510, 512 (1 lth Cir. 1993), and those duties "shou1d not be interrupted by judicial
demands for information that could be obtained elsewhere," In re Cheney, 544 F.3d 311,
314 (D.C. Cir. 2008).

However, the courts also recognize and value the parties’ needs to develop and
prepare their cases. High-ranking officials may be subject to depositions if "‘they have
some personal knowledge about the matter and the party seeking the deposition makes a
showing that the information cannot be obtained elsewhere."’ Payne v. Distriet of
Columbia, 859 F. Supp. 2d l25, 136 (D.D.C. 2012) (quotingAlexana’er v. FBI, 186
F.R.D. l, 4 (D.D.C.1998)); see also Byrd v. Distriet ofColun/zbz'a, 259 F.R.D. 1, 7

(D.D.C. 2009) ("Unless the movant can show that the need for the protective order is

‘sufficient to overcome plaintiffs’ legitimate and important interests in trial preparation,’
high-ranking officials are subject to deposition." (quoting Alexander, 186 F.R.D. at 3).
lt is clear in this case that Secretary Vilsack has personal knowledge that is
directly relevant to the claims and defenses here. The establishment of (or failure to
establish) a connection between the blog post and Sherrod’s loss of her job is a central
issue in this defamation ease. Secretary Vilsack has stated that it was his decision to
request Sherrod’s resignation. U.S. Status Conf. Mem., Ex. C at 2. He is the only one in
a position to confirm that and to explain the relationship, if any, of that decision to the
blog post and video clips at the heart of this defamation ease. Secretary Vilsack, of
course, was not the only government official aware of the video excerpts and blog post.
He knows who counseled him and the contents of that counsel, as well as what other
factual knowledge he had at the time he decided to ask for Sherrod’s resignation.
Secretary Vilsack also has similar knowledge regarding his decision to withdraw his
resignation demand, apologize to Sherrod, and raise with her the possibility of returning
to work at USDA. To say the least, his personal knowledge is critical to the resolution of
this ease.
This situation also meets the second criterion necessary to allow the deposition of

a sitting Cabinet member to go forward: the Secretary has information not available
elsewhere. The Secretary alone has precise knowledge of what factors he considered and
how they influenced his ultimate decision, so that information must come from him, not

from third parties. This is not a case where another witness "would seem more logically

suited to clearing up lingering questions regarding" his own decisions. Cheney, 544 F.3d
at 3 14.

The government, not surprisingly, argues that the information the parties seek is
already in the public record through a statement Secretary Vilsack issued on July 20,
2010, and two press conferences he held on July 21, 2010, and August 24, 2010. Sec’y
Mot. to Quash 1 1. In those public remarks, the Secretary has declared the decision was
his and explained some of the reasoning behind it. See U.S. Status Conf. Mem., Ex. A;
U.S. Status Conf. Mem., Ex. B; U.S. Status Conf. Mem., Ex. C. The government further
proffers that Secretary Vilsack is ready to "ratify[] under penalty ofperjury everything
that he said in his statement of July 20, 2010, and everything that he said at the two press
conferences dealing with plaintif ." Sec’y Mot. to Quash 11 n.7.

Although such ratification may mitigate any concerns this Court or the parties
have about those statements not being made under oath_, it does not obviate the need for
Secretary Vilsack’s deposition. The press, which had very different motivations than do
the parties to this case, did not ask the type of probing follow-up questions counsel expect
to ask at this deposition regarding who he spoke to, what information he was presented
with and considered, and how, if at all, different factors influenced his decision. The
public statements the Secretary chose to make cannot possibly substitute for the answers
to questions specifically directed to his underlying reasoning.

Indeed, oral deposition, rather than deposition by written questions, is clearly
appropriate and necessary here. Put simply, written questions lack the flexibility of oral

examination, the latter of which allows the questioner to adjust on the fly and confine his

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questions to the relevant ones while still satisfying himself and his client that a particular
line of inquiry has been exhausted.3 l\/loreover, both parties and the Court believe a
limited deposition will provide the parties with the very information that will enable them
to substantially narrow the documentary requests they have made to date, and thereby
limit further the government’s burden both to review and produce more documents and to
prepare and produce more witnesses. ln addition, a videotaped oral deposition may well
obviate the need for the Secretary to testify at any future trial in this matter.

Naturally, this Court will provide specific parameters to ensure Secretary

Vilsack’s deposition will be limited in both time and scope. See Cheney, 544 F.3d at 314.

Fishing expeditions and wild goose chases of any kind will not be perrnitted. Plaintiff
Sherrod and defendant O’Connor will each have no more than one hour to question the
Secretary regarding his decision to request and accept Sherrod’s resignation, and his
subsequent decision to apologize and offer her the opportunity to return to the USDA.
The parties will be directed to work with the Secretary’s staff to determine a time, during
either the work week or a given weekend, that is least disruptive to his schedule.
Furthermore, this Court will make itself available, simultaneously, to resolve on the

record any disputes which may arise over the course of the deposition.

3 Nor would deposition by written question in accordance with Federal Rule of Civil
Procedure 31 eliminate the need for Secretary Vilsack to appear, because "Rule 31
clearly contemplates a witness’s personal presence at a deposition, where the witness
delivers his or her testimony orally. lt does not contemplate written responses to written
deposition questions.” Kendrz`ck v. Bowen, ClV. No. 83-3175, 1989 WL 39012, at *l n.2
(D.D.C. Apr. l3, 1989).

CONCLUSION
Thus, for all of the foregoing reasons, the Motion of the United States to Quash
Certain Deposition Subpoenas lssued to the Secretary of Agrieulture is DENlED. An

appropriate order shall accompany this Memorandum Opinion.

/? 'Z QZ 1
l

Rici-IARD J.KL.E.oN

United States Distriet Judge

