Stallworth v. Bryant et al

Filing 418

ORDER granting 394 Motion for Reconsideration. Signed by District Judge Carlton W. Reeves on 9/22/20. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JACKSON MUNICIPAL AIRPORT
AUTHORITY, ET AL.

PLAINTIFFS

V.

CAUSE NO. 3:16-CV-246-CWR-FKB

GOVERNOR TATE REEVES, ET AL.

DEFENDANTS
ORDER

Today, the Court returns to the long-running controversy of whether the plaintiffs may
take an oral deposition of Joey Songy, the former Governor’s former Policy Director and former
Chief of Staff, or instead must send him pre-approved, written questions.
I.

Relevant Background and Arguments
In July 2018, the Magistrate Judge applied controlling Fifth Circuit authority in this area

of law, In re F.D.I.C., 58 F.3d 1055 (5th Cir. 1995), to consider whether then-Chief of Staff
Songy could be deposed about S.B. 2162, the airport takeover bill. The Magistrate Judge
determined that Songy’s testimony was essential and should be secured. Owing to Songy’s
responsibilities in the Governor’s office, however, the Magistrate Judge found that Songy should
only be required to sit for a two-hour deposition limited to two topics.
The Governor’s attorneys appealed. The Fifth Circuit vacated the order with instructions
to consider four new factors. In re Bryant, 745 F. App’x 215 (5th Cir. 2018). The Magistrate
Judge then asked the parties to submit additional briefing.
In an Order dated October 10, 2019, the Magistrate Judge again concluded that Songy
had essential information that justified taking his deposition. Applying the Fifth Circuit’s new
standard, see id., the Magistrate Judge found that the plaintiffs should depose Songy via preapproved, written questions. See Fed. R. Civ. P. 31.

The plaintiffs say “two critical developments” warrant reconsideration of the paper
deposition. Docket No. 395 at 2. They first contend that in the years to have elapsed since the
Fifth Circuit considered this issue, further discovery confirmed that facts within Songy’s
personal knowledge cannot be secured through other witnesses. As the Magistrate Judge put it,
“since only Songy can answer . . . questions about his own concept of transferring control of the
airport or what all he did to promote it, the information must exclusively come from Songy and
cannot be provided by alternative witnesses.” Docket No. 392 at 2.
The new evidence submitted to the Court bears this out. In depositions conducted after
the Fifth Circuit’s ruling, aide after aide testified that then-Policy Director Songy was the person
with information about the airport takeover bill.
One such witness was Drew Snyder, Deputy Counsel to the Governor before and during
S.B. 2162. The plaintiffs thought Snyder had personal knowledge about the legislation, since he
had written a May 18, 2015 document titled, “Taking control of Jackson-Medgar Wiley Evers
International Airport.” In a four-hour fact witness deposition, however, Snyder struggled to
recall anything about the bill’s development. Nearly every page of the deposition excerpts
provided to the Court show him answering with some variation of I don’t remember, I can’t
recall, I don’t know, or I’m not sure. Snyder instead “first heard something about the airport
from Joey,” said Songy was the “policy person . . . attached to the idea,” and wholly deferred to
Songy’s recollection of the bill.
Other depositions were even more useless. Alice Perry, a former policy staffer to the
Governor, said “I don’t remember knowing anything about the airport bill until it was dropped . .
. [I] don’t remember any conversations or meetings with Joey.” Meanwhile, Bobby Morgan, the

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Governor’s policy liaison to the Mississippi Senate, testified that he could not recall a single
conversation he ever had about the bill, despite it being within his portfolio.1
Read as a whole, then, the depositions conducted in 2019 confirm that the plaintiffs
cannot learn the true origins of the airport bill without Songy’s testimony.
The plaintiffs’ second argument is more simple. After the Fifth Circuit’s ruling, Songy
left the Governor’s office. That means state government would no longer be impaired by his
absence to attend a deposition. Accordingly, the plaintiffs seek to conduct a real deposition of
Songy with “spontaneous, necessary follow-up questions,” rather than give him an open-book,
take-home exam. Docket No. 395 at 5.
The Governor’s counsel urges that neither the 2019 depositions nor Songy’s departure
from public service are new or important enough to warrant reconsideration of the Magistrate
Judge’s ruling. And that brings us to the first skirmish: whether movants must have new or
important evidence to secure reconsideration of an order issued before Final Judgment.
II.

The Legal Standard
The Governor’s counsel says the correct standard is found in a 2012 district court case

called Solis v. Bruister. There, the district court recited that “to prevail on their motion for
reconsideration, Defendants must show at least one of the following grounds: ‘(1) an intervening
change in controlling law, (2) the availability of new evidence not previously available, . . . or (3)
the need to correct a clear error of law or prevent manifest injustice.’” No. 4:10-CV-77-DPJFKB, 2012 WL 12829683, at *1 (S.D. Miss. Dec. 26, 2012) (quoting Atkins v. Marathon

1

According to an official biography, Morgan’s portfolio included “issues related to economic development and
federal affairs,” as he worked “closely with the Mississippi Development Authority and its Executive Team on
public policy matters at the local, state, national, and international level” and served “as Governor Bryant’s Liaison
to the Mississippi Senate and . . . designee to the Appalachian Regional Commission.” Mississippi Dep’t of Finance
& Admin., Bobby Morgan, https://www.dfa.ms.gov/dfa-offices/capitol-complex-improvement-district/bobbymorgan/ (last accessed Sept. 15, 2020). In his deposition, Morgan testified that the Jackson airport is a vital part of
economic development efforts.

3

LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990)). These are “the same factors employed
in deciding a Rule 59(e) motion to alter or amend judgment.” Id. (citations omitted).
Every Judge in this District has at some point relied upon Judge Barbour’s Atkins
decision to adjudicate motions for reconsideration. See, e.g., Bell-Wilson v. Skinner, No. 3:09CV-147-CWR-FKB, 2011 WL 1626536, at *1 (S.D. Miss. Apr. 28, 2011). It is a useful and wellreasoned holding. That said, the decision has since been overruled by Austin v. Kroger Texas,
L.P., 864 F.3d 326 (5th Cir. 2017).
In Austin, the Fifth Circuit concluded that it was an abuse of discretion to apply the Rule
59(e) standard to motions for reconsideration filed before entry of Final Judgment. Id. at 336.
The correct standard was found in Rule 54(b), a “less stringent” rule which “allows parties to
seek reconsideration of interlocutory orders and authorizes the district court to revise at any time
any order or other decision that does not end the action.” Id. (quotation marks, citation, brackets,
and ellipses omitted). “Under Rule 54(b), the trial court is free to reconsider and reverse its
decision for any reason it deems sufficient, even in the absence of new evidence or an
intervening change in or clarification of the substantive law.” Id. (quotation marks and citation
omitted).
This Court must apply Austin. As a result, the Rule 54(b) standard governs today’s
motion.2

2

The Governor’s attorneys have not made any argument under Rule 72(a) and have therefore waived its application.
Even viewed through the prism of Rule 72(a), however, under Austin, a decision contrary to law should not remain
unaddressed. As the Fifth Circuit has explained, when the trial court has erred and applied the more stringent Rule
59(e) standard, the appellate court must vacate and remand for the trial court to reconsider under the more flexible
Rule 54(b) standard. See McClendon v. United States, 892 F.3d 775, 781 (5th Cir. 2018); Six Dimensions, Inc. v
Perficient, Inc., 969 F.3d 219, 227 (5th Cir. 2020).

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III.

High-Ranking Government Officials
The next dispute concerns whether Songy, now a private citizen, may once again invoke

the privilege afforded high-ranking government officials.
Everyone agrees that current high-ranking government officials may assert a qualified
privilege against compelled testimony. See United States v. Morgan, 313 U.S. 409, 422 (1941).
In the leading Fifth Circuit case on this subject, for example, the appellate court halted planned
depositions of the Acting Chairman of the F.D.I.C., the Comptroller of the Currency, and the
Acting Director of the Office of Thrift Supervision, whose testimony had been sought to support
a civil conspiracy claim. F.D.I.C., 58 F.3d at 1059; accord Peoples v. U.S. Dep’t of Agric., 427
F.2d 561, 567 (D.C. Cir. 1970) (“subjecting a cabinet officer to oral deposition is not normally
countenanced”).
The “dispute” today is whether former high-ranking government officials may assert the
privilege.
The Court says “dispute” because the parties are speaking past each other on this issue.
Counsel for the Governor has helpfully cited a dozen cases indicating that yes, former highranking government officials may continue to assert the privilege. The Governor’s attorneys are
correct. The plaintiffs don’t really disagree. They merely observe that “with [Songy’s] departure
also goes the primary reason for exempting him from having to sit for an oral deposition as
opposed to some other form of discovery.” Docket No. 395 at 5. This too is correct.
Courts are supposed to insulate high-ranking government officials “from the constant
distraction of testifying in lawsuits” in part because we need the government to function. In re
United States, 985 F.2d 510, 512 (11th Cir. 1993). But that element of the analysis is entitled to

5

less weight when the official has left public service. The government is functioning without
them. As one of the cases the Governor relies upon explained,
The general rule prohibiting depositions of high-ranking government officials
applies to former high-ranking officials, although in the case of former highranking government officials, one important rationale for the rule is absent. United
States v. Sensient Colors, Inc., 649 F. Supp. 2d at 320 (noting that rationale based
on interference with official duties is absent).
Thomas v. Cate, 715 F. Supp. 2d 1012, 1049–50 (E.D. Cal. 2010). Another one of the
Governor’s proffered cases reasoned similarly, noting “a marked difference between current and
former government officials in terms of the likely frequency and onerousness of discovery
requests.” Arnold Agency v. W. Va. Lottery Comm’n, 206 W. Va. 583, 599 (1999).
In any event, between the authorities and the arguments, it is enough to say that Songy
may continue to assert the qualified privilege against compelled testimony the law affords highranking government officials, despite his present employment in the private sector.
IV.

Depositions by Written Questions
We finally get to the central question: whether the plaintiffs may depose Songy orally or

in writing. That requires some discussion of the differences between oral and written testimony.
The below analysis will begin with cases about the importance of oral trial testimony before
turning to those discussing the value of oral depositions.
The Fifth Circuit holds oral trial testimony in high regard. The law of the circuit was
summarized nicely in this 2019 opinion:
“Credibility determinations are sensitive matters.” Latiolais v. Whitley, 93 F.3d
205, 209 (5th Cir. 1996). Witness credibility “is not readily discernable by one who
merely reads a cold record.” Pigrenet v. Boland Marine & Mfg. Co., 631 F.2d 1190,
1191 (5th Cir. 1980), rev’d on other grounds on reh’g, 656 F.2d 1091 (5th Cir.
1981). “Only through live cross-examination can the jury fully appreciate the
strength or weakness of the witness’s testimony, by closely observing the witness’s
demeanor, expressions, and intonations.” Aguilar-Ayala v. Ruiz, 973 F.2d 411, 419
(5th Cir. 1992).
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Swearingen v. Gillar Home Health Care, L.P., 759 F. App’x 322, 325–26 (5th Cir. 2019)
(brackets omitted). The Advisory Committee Notes to Rule 43 concur, stating in relevant part,
“[t]he importance of presenting live testimony in court cannot be forgotten. . . . The opportunity
to judge the demeanor of a witness face-to-face is accorded great value in our tradition.” United
States v. Navarro, 169 F.3d 228, 238 (5th Cir. 1999) (citation omitted).3
Written statements, in contrast, are thought to be less useful, less likely to lead to truth.
When a witness has an opportunity to write down his answers, he has the opportunity to “plan
artful responses.” Innovative Mktg. & Tech., L.L.C. v. Norm Thompson Outfitters, Inc., 171
F.R.D. 203, 204 (W.D. Tex. 1997) (citation omitted). This Court agrees with the lawyer who
wrote, “[t]he usefulness of interrogatories as a discovery device is limited. . . . [I]n the unlikely
event that you do get a response, it will most probably be useless.” Richard A. Rosen, Drafting
and Responding to Written Discovery Under the New Federal Rules: Document Requests,
Interrogatories, and Requests to Admit, C947 ALI-ABA 147, 171 (1994).
One suspects the majority of trial lawyers and trial-court judges prefer oral depositions
over written interrogatories, even for extremely sensitive matters. See, e.g., Jordan v. Taylor, No.
3:15-CV-295-HTW-LRA, 2020 WL 1908488, at *1 (S.D. Miss. Apr. 17, 2020) (finding
telephonic depositions preferred over written interrogatories, for “depositions of employees of
the Mississippi Department of Corrections [and] the Office of the Attorney General, who have
been identified as having participated in the State’s efforts to obtain lethal injection drugs”)
(collecting cases). The reasons for this echo why we value oral trial testimony. As one of those
judges explained three decades ago,

3

In the criminal context, the Fifth Circuit has written that “[t]rial by deposition steps hard on the right of criminal
defendants to confront their accusers.” Aguilar-Ayala, 973 F.2d at 419.

7

there are several reasons why oral depositions should not be routinely replaced by
written questions. First, the interrogatory format does not permit the probing
follow-up questions necessary in all but the simplest litigation. Second, without oral
deposition, counsel are unable to observe the demeanor of the witness and evaluate
his credibility in anticipation of trial. Finally, written questions provide an
opportunity for counsel to assist the witness in providing answers so carefully
tailored that they are likely to generate additional discovery disputes.
Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 549 (S.D.N.Y. 1989) (citations omitted).
This matter is a good candidate for an oral deposition. The Magistrate Judge twice found
Songy’s testimony essential. Other attempts to secure the information Songy possesses have
been futile: the involved legislators refuse to submit even a privilege log, while the depositions
of the former Governor’s staff were fruitless.4 Meanwhile, Songy is no longer in public service,
so a deposition will not distract him from official duties.
There is simply a chasm between our situation and leading cases like In re United States,
where the Eleventh Circuit found that the FDA Commissioner’s time was too valuable to be
taken up by a deposition. Songy is not “responsible for the regulation of all drugs, foods,
cosmetics and medical devices as well as overseeing the enforcement of statutes and regulations
governing the distribution and sales of these items.” 985 F.2d at 512. He is not responsible for
any public business. He is a private citizen. He no longer has “greater duties and time constraints
than other witnesses.” F.D.I.C., 58 F.3d at 1060.
The Governor’s attorneys press that a supervised, written deposition is “correct.” Docket
No. 403 at 8. For support they advance a string cite of cases where former high-ranking officials
invoked the qualified privilege against compelled testimony. Id. at 8-9 (collecting cases). But the
Governor has already prevailed on the ‘current-versus-former-officials’ point. The issue now is
in how many of those cases a high-ranking official with essential information was allowed to

4

The Fifth Circuit suggested that we might be able to cut through the thicket by considering the legislative
immunity and high-ranking government official issues together. This Court agrees.

8

evade a real conversation, with actual follow-up questions, by submitting written answers to preapproved questions.
The answer is one. In Thomas v. Cate, the district court refused to let a state prisoner
depose former California Governor Gray Davis. The prisoner had “failed to carry his burden of
establishing that the information he seeks to obtain from the Governor’s deposition is not
available from other sources.” 715 F. Supp. 2d at 1049, 1050. The court then went on to say,
“[i]n the event Petitioner has a specific need for information solely in the possession of former
Governor Davis, Petitioner may submit a limited number of interrogatory requests to the Court
for approval.”5 Id. at 1050.
In 10 of the Governor’s string-cited cases, however, the court did not weigh in on the
form of the deposition at all, as the movants had not met the standard necessary to get any
evidence from the former high-ranking government official.6 Sometimes the movants failed to

5

This Court credits as “close enough” the difference between the written interrogatories conditionally permitted in
Thomas and the deposition by written questions at issue in our case.

6
In Lederman v. New York City Dep’t of Parks & Recreation, 731 F.3d 199 (2d Cir. 2013), the plaintiffs were not
permitted to depose the former Deputy Mayor of New York City. They didn’t even “contend that . . . Skyler had
first-hand knowledge about the litigated claims or that the relevant information could not be obtained elsewhere.” Id.
at 203 (emphasis added).

In Fed. Deposit Ins. Corp. v. Galan-Alvarez, No. 1:15-MC-752 (CRC), 2015 WL 5602342 (D.D.C. Sept. 4, 2015),
the defendants weren’t permitted to depose the former Chair of the FDIC. They couldn’t show that she had “unique
knowledge relevant to the underlying litigation or that the Defendants could not obtain the information sought from
another source.” Id. at *1.
In Buckler v. Israel, No. 13-62074-CLV, 2014 WL 7777678, *2 (S.D. Fla. Nov. 13, 2014), the plaintiffs were
prohibited from taking the deposition of the former Broward County Sheriff because they failed to establish that the
information “cannot be obtained from any other source” or that the former Sheriff had “any firsthand knowledge
about the matters at issue in this case.”
In City of Fort Lauderdale v. Scott, No. 10-61122-CIV, 2012 WL 760743 (S.D. Fla. Mar. 7, 2012), the movants
could not meet the high standard necessary to depose the former City Manager of Fort Lauderdale. The court found
that the movants “have not made a sufficient showing that they have attempted to ascertain that the information
sought is not available from other lower-level employees.” Id. at *4.
In Dobson v. Vail, No. C10-5233/KLS, 2011 WL 4404146, *3 (W.D. Wash. Sept. 21, 2011), the court refused to let
a pro se plaintiff depose the former Secretary of the Washington Department of Corrections, since depositions of

9

show that the official had any knowledge of the subject; other times they failed to show that
subordinates couldn’t provide the information. Those 10 cases are not relevant to our situation,
where the Magistrate Judge has repeatedly found the official to have critical personal knowledge
and discovery has established that no one else knows what happened.
As for the twelfth case advanced by the Governor, well, it supports the plaintiffs’
position. In Arnold Agency, the Supreme Court of Appeals of West Virginia created a two-step
process for securing testimony from a former high-ranking government official. 206 W. Va. at
597. The plaintiff was first ordered to send the former Governor written questions. If the ensuing
answers showed that the former Governor had “personal knowledge relevant to this matter, [the
plaintiff] may then conduct an oral deposition.” Id. at 599 n.19. If that process applied here, the
plaintiffs would have already taken their oral deposition of Songy.

other state officials established that the plaintiff was “able to obtain information relevant to [the issue] from sources
other than [the Secretary] who are more knowledgeable on the issue than [the Secretary].”
In Jarbo v. Cty. of Orange, No. SACV 05-202-JVS, 2010 WL 3584440 (C.D. Cal. Aug. 30, 2010), the plaintiff was
not permitted to take a deposition of the former Sheriff of Orange County. The court found that “Plaintiff has not
presented any argument as to why there are extraordinary circumstances in this case,” adding, “it is not obvious that
Sheriff Carona has direct personal factual information pertaining to the material issues in this case that is not
available through other sources.” Id. at *2.
In Bey v. City of New York, No. 99-CIV-3873, 2007 WL 3010023, at *2 (S.D.N.Y. Oct. 15, 2007), the court did not
permit the plaintiffs to depose the former Commissioner of the New York City Department of Corrections, because
“Plaintiffs have access to other officials with more unique and personal knowledge of proceedings against plaintiffs,
thus making a deposition of [the former Commissioner] unnecessary.”
In Croddy v. Fed. Bureau of Investigation, No. CV 00-0651 (EGS), 2005 WL 8168910, at *1 (D.D.C. Mar. 30,
2005), the court declined to order the deposition of former FBI Director Louis Freeh, since the plaintiffs “have not
shown that [Freeh] possesses unique personal knowledge of the circumstances that led to the [rescission] of
plaintiffs’ employment offers. Further, plaintiffs have not established that the information they seek from the former
director is relevant to the disposition of this case or that this information is unavailable from other sources.”
In United States v. Wal-Mart Stores, Inc., No. CIV.A. PJM-01-1521, 2002 WL 562301 (D. Md. Mar. 29, 2002), the
court declined to permit a deposition of the former Chair of the Consumer Product Safety Commission. The plaintiff
had not made “a preliminary showing of extraordinary circumstances or the personal involvement of [the former
Chair] in a material way.” Id. at *4.
In Horne v. Sch. Bd. of Miami-Dade Cty., 901 So. 2d 238, 239 (Fla. Dist. Ct. App. 2005), a Florida appellate court
declined to let the plaintiff depose the former Florida Commissioner of Education, as the plaintiff had not
“established that the testimony to be elicited is necessary, relevant, and unavailable from another source.”

10

String cite aside, the best case advanced in the Governor’s brief is the one the Fifth
Circuit cited, In re FEMA Trailer Formaldehyde Prod. Liab. Litig., No. MDL 07-1873, 2009
WL 1883062 (E.D. La. June 24, 2009). There, Judge Engelhardt initially deferred the deposition
of a former FEMA Deputy Administrator until the plaintiffs had first completed depositions of
three other individuals. Id. at *1. Two months later, with those depositions completed, the Judge
concluded that the plaintiffs were entitled to information from the former official about only one
question: “What were [his] concerns and his reasoning behind delaying the testing from October
2007 until December 2007[?]” In re FEMA Trailer Formaldehyde Prod. Liab. Litig., No. MDL
07-1873, 2009 WL 2602615, at *1 (E.D. La. Aug. 20, 2009). Judge Engelhardt ordered that the
question be answered in writing, under oath. Id.
Judge Engelhardt’s ruling is a fair one, no doubt within the standard of review. But it
cited no cases or other authorities to support its conclusion. And a review of the run of cases
indicates that it is an outlier.
There’s Bey v. City of New York—a dispute the Governor cited for a different
proposition—where the court permitted the oral deposition of a high-ranking government official
who had essential information about the plaintiffs’ claims:
Based on plaintiffs’ assertions, it appears that [Edward Kuriansky, former
Commissioner of the New York City Department of Investigations] does possess
unique personal knowledge, that is both relevant and cannot be obtained from
another source. Kuriansky was Caruso’s supervisor and, based on Caruso’s
testimony, was aware of, if not involved in, the investigation of plaintiffs. Caruso’s
testimony that he had conversations with Kuriansky, but does not recollect the
substance, means that the information is not available through any other means.
Because Kuriansky is no longer a governmental official, there is no reason to
believe that a deposition would “significantly interfere with [his] ability ... to
perform his governmental duties.” Therefore, plaintiffs’ motion for a protective
order to preclude the deposition of Kuriansky is DENIED.
No. 99-CIV-3873, 2007 WL 1893723, at *2 (S.D.N.Y. June 28, 2007) (citations omitted).

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There’s Energy Capital Corp. v. United States, in which the court found that “because
[former HUD Secretary Andrew] Cuomo and [former HUD General Counsel Howard] Glaser
had first-hand personal knowledge that no one else has that is relevant to this case, their live
testimony [by videotaped deposition] was appropriate.” 60 Fed. Cl. 315, 318 (2004). This was a
reasonable, “less intrusive” compromise, since “depositions can be performed and videotaped at
a time and place that is convenient to both parties” Id. at 319.
There’s Gibson v. Carmody, where the court permitted the plaintiffs to depose “former
Police Commissioner Benjamin Ward” for two hours, overruling the defendant’s request for
written questions. No. 89 CIV. 5358 (LMM), 1991 WL 161087, at *1 (S.D.N.Y. Aug. 14, 1991).
The court reasoned,
While the taking of depositions of present or former government officials at the
level of Police Commissioner should not lightly be granted, it is clear that
Commissioner Ward personally participated in proceedings relating to or stemming
from the investigation of the facts underlying this case . . . , and fairness to the
parties requires that, under the conditions described above, they be permitted to
depose him. The submission of written questions, as suggested by the City, is an
inadequate, and perhaps ultimately wasteful, substitute for an oral deposition.
Id.
Then there’s American Broadcasting Companies v. U.S. Information Agency, in which
the court rejected the government’s request for written questions directed to the agency head,
finding the suggestion “without merit” and “serv[ing] only to frustrate any meaningful discovery
on the plaintiffs’ behalf.” 599 F. Supp. 765, 769 (D.D.C. 1984). “Depositions are the most
efficient means of discovery for the plaintiffs in the context of the instant case. . . . Depositions
are also more reliable, as they are taken under oath, and the deponents’ responses are relatively
spontaneous.” Id.

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The list goes on and on. The Governor of the Virgin Islands was required to sit for an oral
deposition in Virgo Corp. v. Paiewonsky, 39 F.R.D. 9, 10 (D.V.I. 1966). The commanding
officer of the New Jersey State Troopers had to sit for a two-hour deposition in Summerville v.
Gregory, No. 14-CV-7653 (KM)(MAH), 2017 WL 3208346, at *4 (D.N.J. July 27, 2017). The
Mayor and Police Chief of Hammond, Indiana had to sit for two-hour depositions in Mayes v.
City of Hammond, No. 2:03-CV-379-PRC, 2005 WL 8170415, at *4 (N.D. Ind. Sept. 19, 2005).
There’s even another Cuomo case. See Sanstrom v. Rosa, No. 93 CIV. 7146 (RLC), 1996 WL
469589, at *5 (S.D.N.Y. Aug. 16, 1996) (ordering the deposition of former Governor Mario
Cuomo).
“Depositions of high ranking officials may be permitted where the official has first-hand
knowledge related to the claim being litigated,” and then “only where it is shown that other
persons cannot provide the necessary information.” Bogan v. City of Bos., 489 F.3d 417, 423 (1st
Cir. 2007) (citations omitted). If those exceptional circumstances exist, however, the great
weight of authority says the official should sit for an oral deposition limited in time and subject
matter.
It has never been clear why this witness should be treated differently from the many other
current and former high-ranking government officials described in the above cases. Accordingly,
the plaintiffs’ motion is granted to the extent that Songy shall sit for an oral deposition limited to
two hours and two topics.
V.

The Inconsistency of the Governor’s Position
A word is owed about gamesmanship. Patient readers will recall that in a four-hour

deposition, former Deputy Counsel Drew Snyder listed all the ways he did not remember
Songy’s work on the airport takeover bill. The Court returns to that deposition for a moment.

13

The transcript suggests that the deposition started to go sideways fairly quickly. As early
as pages 11 and 12, the plaintiffs’ attorney protested that Snyder was taking 10 minutes to
answer every question—playing a game of slowing it down.7 In the ensuing pages Snyder then
answered some form of “I don’t remember” dozens of times. Frustrated, Snyder eventually said
he had better things to do with his time.
Look, that 30(b)(6) deposition was two years ago. I’ve moved on to running
Medicaid in January of 2018. And since then, it’s been – well, you’ve got 720,000
beneficiaries and 6.2 billion in annual expenses and about 3,500 acronyms. It’s all
Medicaid. So, what I saw or didn’t see in that 2017 30(b)(6), I think is probably –
it’s best reflected in that 30(b)(6). I don’t remember a whole lot about what was in
there at this point.
The Court understands that everyone’s patience was wearing thin, and wishes to focus on the
substance of Snyder’s comments rather than how they may have come across.
Snyder was right. The Division of Medicaid might be the most important agency in
Mississippi. It touches a huge proportion of our citizens in the most personal of ways: from the
physical and mental health of hundreds of thousands of families, to the pocketbooks of tens of
thousands of doctors, nurses, and other health care providers, to the public in general.
Snyder is essential to that enterprise. It’s a difficult job that requires sustained attention
and expertise.
Given this, the Court cannot figure out why, even after the Fifth Circuit’s ruling
reiterating the importance of protecting high-ranking officials’ time and attention, the Governor’s
office would continue to invoke the privilege for Songy to block a two-hour deposition but hang
its Medicaid director out to dry for a four-hour deposition. If anyone needs to be conducting

7

Counsel for the Governor participated in the delay by repeating the same evidentiary objection to each question.
The Court does not ascribe any impropriety to him, though, because we do not know if plaintiffs’ counsel refused to
stipulate to a continuing objection. Moving forward, the Court encourages all counsel to stipulate to those objections
that the defending attorney wants preserved throughout the deposition.

14

important public business it is Snyder, not Songy. The illogical distinction being drawn between
them suggests that Songy knows something about the airport bill that cannot be provided to the
plaintiffs and the public.
Judge Fallon was presented with an analogous problem during the Vioxx MDL. The
plaintiffs wished to call at trial Merck’s President of Human Health for Canada, Latin America,
Japan, Australia, and New Zealand, who had previously been the President of Human Health for
the United States.8 In re Vioxx Prod. Liab. Litig., 439 F. Supp. 2d 640, 641 (E.D. La. 2006). This
executive had already sat for depositions—unlike Songy—but Merck did not want the person
“responsible for the marketing activities and commercial operations of Merck during the time
Vioxx was being developed and marketed” to provide live testimony at a bellwether trial. Id.
Judge Fallon wasn’t persuaded. He wrote,
Merck’s refusal to voluntarily produce Mr. Anstice is for a purely tactical
advantage. The Court is quite conscious that Mr. Anstice possesses information
highly-relevant to the plaintiff’s claims. This information may be damaging to
Merck’s position. As such, the Court assumes that Merck would like to eliminate
any unpredictability and limit Mr. Anstice’s trial testimony to his “canned”
deposition testimony—a purely tactical reason. The Court cannot surmise any other
legitimate reason why Merck would protest to Mr. Anstice’s personal appearance.
Id. at 643. Judge Fallon found that “live, in-person testimony is optimal for trial testimony,”
while “on the other hand, the deposition is a substitute, a second-best, not to be used when the
original is at hand.” Id. at 644 (quotation marks and citations omitted). He compelled the
executive’s testimony.
Our situation obviously involves a former high-ranking government official rather than
an executive of a multi-national pharmaceutical company. But the plaintiffs in this case have so
far been denied even the “second-best” option: a deposition. And they seek what most other

8

The circumstances suggest that Merck’s executives are, like high-ranking government officials, “the subject of or
involved in unusually high numbers of lawsuits.” Bryant, 745 F. App’x at 220.

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courts have required of high-ranking government officials with essential information: a
deposition. It should be conducted without further delay.
VI.

Conclusion
For these reasons, the Court requires that Joey Songy sit for an oral deposition limited to

two hours’ duration and two topics. The deposition shall be videotaped to discourage future
motion practice on whether any participant in the deposition is trying to run out the clock.
This Order is stayed pending the Governor’s anticipated interlocutory appeal.
SO ORDERED, this the 22nd day of September, 2020.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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