EMW Women's Surgical Center, P.S.C. et al v. Glisson

Filing 87

MEMORANDUM OPINION AND ORDER by Magistrate Judge Dave Whalin on 8/30/2017 re 59 Motion for Protective Order and Motion to Quash Subpoena. IT IS HEREBY ORDERED that Defendants' Motion for Protective Order to prevent the deposition of Governor Bevin (DN 59 ) is GRANTED. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17CV-00189-GNS
EMW WOMEN’S SURGICAL
CENTER, P.S.C.
PLAINTIFF
and
PLANNED PARENTHOOD OF INDIANA
AND KENTUCKY, INC.

INTERVENING PLAINTIFF

VS.
VICKY YATES BROWN GLISSON, et al.

DEFENDANTS

MEMORANDUM OPINION
AND ORDER
Presently before the Court is Defendants Secretary Vicky Yates Brown Glisson and

Governor Matthew G. Bevin’s (“Defendants”) Motion for Protective Order and Motion to Quash
the Subpoena relating to Intervening Plaintiff Planned Parenthood of Indiana and Kentucky’s
(“Planned Parenthood’s”) noticed deposition of Governor Bevin. (DN 59). Planned Parenthood
has filed a response in opposition. (DN 70). Because this case’s bench trial is rapidly approaching,
the Court finds it appropriate to address this motion at once.

Background
This case concerns the constitutionality of KRS § 216B.0435, a statute requiring abortion
clinics to maintain written “transfer agreements” with a licensed acute care hospital and written
“transport agreements” with a licensed ambulance service. On March 13, 2017, the Cabinet for
1

Health and Family Services notified EMW Women’s Surgical Center P.S.C. of Louisville
(“EMW”) that its abortion-facility license had been erroneously renewed because of deficiencies
in its transfer and transport agreements as required by KRS § 216B.0435. (DN 1-4). The Cabinet
told EMW its license would be revoked if it failed to cure the alleged deficiencies by April 3, 2017.
(DN 1-7). Planned Parenthood similarly was granted a license to operate as a Special Health Clinic
and submitted transfer and transport agreements to the Cabinet, as required to perform abortions.
(DN 46, at ¶ 12). But in January of 2016, Planned Parenthood was informed by letter from the
Cabinet that deficiencies existed in its transfer and transport agreements. (Id. at ¶ 47). Planned
Parenthood submitted two new hospital transfer agreements and one new transport agreement,
which were all found deficient by the Cabinet in September of 2016. (Id. at ¶ 48).
EMW filed this action on March 29, 2017, against Vicky Yates Brown Glisson (“Glisson”)
in her official capacity as Secretary of the Cabinet for Health and Family Services alleging that the
Cabinet’s actions and KRS 216B.0435 violate the First and Fourteenth Amendments of the United
States Constitution. (DN 1, at ¶¶ 56-61). Almost three months later the Court permitted Planned
Parenthood to intervene as a plaintiff. (DN 45). Planned Parenthood’s intervening complaint
added Matthew Bevin as a defendant, in his official capacity as the Governor of Kentucky, and
alleges that Governor Bevin “has caused his agents, under his supervision and direction, to
obstruct [Planned Parenthood’s] Louisville Health Center from providing abortions by any means
necessary, including misapplication of the plain language of the challenge statute and regulation.”
(DN 46, at ¶ 13).

2

Deposition of Governor Bevin
Defendants have filed a motion for protective order and motion to quash subpoena seeking
to prevent Planned Parenthood from taking the deposition of Governor Bevin. (DN 59).
Defendants argue that Governor Bevin should not be subject to a deposition because he is a
high-ranking government official and has no first-hand knowledge of the claims at issue in this
case and “never caused his agents to obstruct either Plaintiff’s procurement or transfer
agreements.” (DN 59, at pp. 3-5). Defendants believe the Court should apply the “extraordinary
circumstances” test adopted by a number of circuits1 and by some district courts within the Sixth
Circuit. (Id. (citing Boudreau v. Bouchard, No. 07-10529, 2008 WL 4386836, at *2 (E.D. Mich.
Sept. 25, 2008); Jackson v. City of Detroit, No. 05-74236, 2007 L 2225886 (E.D. Mich. Aug. 1,
2007)). According to Defendants, Planned Parenthood only seeks to take Governor Bevin’s
deposition as a fishing expedition and to harass the Governor. (Id. at p. 9).
Planned Parenthood counters that the Sixth Circuit’s opinion in Serrano v. Cintas Corp.
controls the analysis of this issue. (DN 70, at p. 8 (citing Serrano v. Cintas Corp., 699 F.3d 884,
901 (6th Cir. 2012)).2 Governor Bevin’s reliance on his position as a high-ranking government
official and failure to offer particular and specific demonstrations of fact and any alleged harm by
the deposition, Planned Parenthood asserts, is not enough to warrant a protective order to prevent

1 See Lederman v. New York City Dept. of Parks & Recreation, 731 F.3d 199, 203 (2d Cir. 2013) (citing Bogan v. City
of Boston, 489 F.3d 417, 423 (1st Cir. 2007); In re United States (Holder), 197 F.3d 310, 313-14 (8th Cir. 1999); In re
FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995); In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993); Franklin
Sav. Ass’n v. Ryan, 922 F.2d 209, 211 (4th Cir. 1991); Simplex Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575,
586 (D.C. Cir. 1985); Kyle Eng’g Co. v. Kleppe, 600 F.2d 226, 231-32 (9th Cir. 1979); Warren Bank v. Camp, 397
F.2d 52, 56-57 (6th Cir. 1968)).
2 It should be noted that the Sixth Circuit in Serrano held that the “apex doctrine” did not preclude the deposition of
the defendant corporation’s chief executive officer. 699 F.3d at 902.

3

his deposition. (Id.). Planned Parenthood also presents an e-mail exchange between University of
Louisville officials that it believes justifies compelling the Governor’s deposition. (Id. at p. 11).
Federal Rule of Civil Procedure 26 permits a party or person from whom discovery is
sought to “move for a protective order in the court where the action is pending – or as an
alternative on matters relating to deposition, in the court for the district where the deposition will
be taken.” Fed.R.Civ.P. 26(c)(1). This Rule explains that district courts may, “for good cause,
issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense . . .” Id. As pointed out by Planned Parenthood, the Sixth Circuit has endorsed
the view that “to justify a protective order, one of Rule 26(c)(1)’s enumerated harms “must be
illustrated ‘with a particular and specific demonstration of fact, as distinguished from stereotyped
and conclusory statements.’” Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (quoting
Nemir v. Mitsubishi Motos Corp., 381 F.3d 540, 550 (6th Cir. 2004) (additional citations omitted)).
It is important to recognize, however, that many courts have found high-ranking
government officials are generally not subject to deposition, unlike the CEO in Serrano. See
Murray v. U.S. Dep’t of Treasury, No. 08-cv-15147, 2010 WL 1980850, at *2 (E.D Mich. May 18,
2010). This is because of the “responsibilities and time constraints incumbent on high-ranking
officials” and because “testifying in every case to which the agency or administration is a party
would monopolize the official’s time.” Id. (citing In re United States (Kessler), 985 F.2d 510, 512
(11th Cir. 1993); Simplex Time Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 586 (D.C. Cir.
1985); United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 85 L.Ed. 1429 (1941)).
But this limitation is not absolute. See Boudreau v. Bouchard, No. 07-10529, 2008 WL
4386836, at *2 (E.D. Mich. Sept. 25, 2008). The general rule across the circuits is “that absent
4

extraordinary circumstances, high-ranking officials may not be subjected to depositions or called
to testify regarding their official actions.” See Coleman v. Schwarzenegger, Nos. CIV S-90-0520
LKK JFM, C01-1351 TEH, 2008 WL 4300437, at *3-4 (E.D. Cal. Sept. 15, 2008) (collecting
cases). The extraordinary circumstances test may be met where the official has “first-hand
knowledge related to the claim being litigated[,]” Boudreau, 2008 WL 4386836, at *2 (citing
Baine v. Gen. Motors Corp., 141 F.R.D. 332, 335 (M.D. Ala. 1991) (additional citations omitted)),
and “where it is shown that other persons cannot provide the necessary information[,]” id. (citing
In re United States (Holder), 197 F.3d 310, 314 (8th Cir. 1999)).
The “extraordinary circumstances test” outlined above is very similar to the so-called
“apex doctrine.” Serrano explains that the apex doctrine bars the deposition of “high level
executives absent a showing of their ‘unique and personal knowledge’ of relevant facts.” 699 F.3d
at 900. This doctrine “appears to assume that ‘harassment and abuse’ are ‘inherent’ in depositions
of high-level corporate officers[.]” Id. at 901. Serrano specifically overturned a magistrate judge’s
decision to prevent the deposition of the CEO of a corporate defendant when the magistrate judge
applied the apex doctrine and did not analyze what harm the CEO would suffer under Rule
26(c)(1) by submitting to the deposition. Id. at 902. Yet it is not clear whether the Serrano ruling
also extends to high-ranking government officials, such as Governor Bevin in this case. See
Duncan v. Husted, No. 2:13-cv-1157, 2015 WL 631103, at *3 (S.D. Ohio, Feb. 12, 2015)
(analyzing whether Serrano’s directive would apply equally to governmental officials as it does to
corporate officials).

5

Regardless of whether the Court applies the extraordinary circumstances test (“apex
doctrine”) relied on in other circuits or applies the strict adherence to Rule 26 as outlined in
Serrano, Governor Bevin’s deposition should not go forward.
First, Governor Bevin is undeniably a high-ranking official not normally subject to the
burden of depositions. See New York v. Oneida Indian Nation of New York, No. 95-CV-0554
(LEK/RFT), 2001 WL 1708804 (N.D.N.Y. Nov. 9, 2001) (“[w]ithout a doubt, Governor Pataki is
such a high-ranking state government official for whom the Court should not lightly impose the
burden of providing a deposition.”); see also Hernandez v. Texas Dep’t of Aging & Disability
Servs., No. A-11-CV-856 LY, 2011 WL 6300852 (W.D. Tex. Dec. 16, 2011); Thomas v. Cate, 715
F. Supp. 2d 1012, 1049 (E.D. Cal 2010); Coleman v. Schwarzenegger, Nos. CIV S-90-0520 LKK
JFM, C01-1351 TEH, 2008 WL 4300437, at *3-4 (E.D. Cal. Sept. 15, 2008). The inquiry then
becomes whether extraordinary circumstances exist for subjecting Governor Bevin to a deposition
in this case. Planned Parenthood emphasizes an email thread between University of Louisville
officials that mentions “gubernatorial consternation over doing tubals and abortions at Kentucky
One[,]” the “agreement with Planned Parenthood . . . caus[ing] heartburn for Bevin[,]” and that
“McCarthy is trying to keep the Governor happy with UofL[.]” (DN 70-6). Planned Parenthood
feels this e-mail “places the Governor squarely in the middle of the very transfer agreements and
licensing decisions from which he claims to be independent. But Planned Parenthood fails to
acknowledge that later in the e-mail thread, a recipient, Gregory Postel, indicated “there is
significant misinformation in this conversation[,]” which calls the probative value of this
conversation into question. (Id.). This evidence does not, on its own, establish extraordinary
circumstances for permitting Governor Bevin’s deposition. Further, Defendants explain that
6

Governor Bevin does not have first-hand knowledge of the matters at issue in the case. (DN 59).
Under this test, the Court finds extraordinary circumstances do not exist to warrant deposition of
Governor Bevin.
Second, even if the so-called apex doctrine was inapplicable, Defendants have sufficiently
specified the harm Governor Bevin would suffer by submitting to the deposition as required by
Serrano. See Duncan, 2015 WL 631103, at *3-4. Defendants allege the Governor’s deposition is a
fishing expedition intended to harass by putting forth deposition testimony of nine individual
decision-makers in the case on the question of whether they communicated with Governor Bevin
on the topics at issue in the case. Only one of these nine depositions, that of Ruth Brinkley, the
President and CEO of KentuckyOne Health, revealed any communication with Governor Bevin
relating to the revocation of the transfer agreements. But even Brinkley’s communications do not
squarely place Bevin in the middle of the transfer agreement controversy as Planned Parenthood
alleges. Brinkley indicated she spoke with Governor Bevin at a mutual friend’s birthday party
where Governor Bevin requested that KentuckyOne Health issue a statement indicating that its
decision not to allow University of Louisville Hospital to enter into the transfer agreement was not
influenced by any outside entities. (DN 59-2). Later in the deposition, Brinkley confirmed that she
made the decision to terminate the agreement with Planned Parenthood independently and free
from outside influence. (Id.).
The Court agrees with Defendants that the numerous depositions previously taken in this
case that do not reveal improper communications with the Governor supports the Defendants’
allegation that the Governor’s deposition would be a fishing expedition intended to harass or

7

annoy. These particularized statements of fact, the Court finds, establish sufficient harm to
Governor Bevin to justify a protective order under both Rule 26 and Serrano.

ORDER
IT IS HEREBY ORDERED that Defendants’ Motion for Protective Order to prevent the
deposition of Governor Bevin (DN 59) is GRANTED.

August 30, 2017

Copies:

Counsel of Record

8