Hamby v. Hammond et al

Filing 21

ORDER granting 15 Motion for Protective Order and Quashing the Deposition of Defendant Warner, signed by Magistrate Judge Karen L Strombom.(CMG; cc to Plaintiff)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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FLEET C. HAMBY,

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Plaintiff,

No. 14-5759 BHS/KLS

v.
G. STEVEN HAMMOND, BERNARD
WARNER,

ORDER GRANTING MOTION FOR A
PROTECTIVE ORDER AND
QUASHING THE DEPOSITION OF
DEFENDANT WARNER

Defendants.

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Before the Court is Defendant’s Motion for Protective Order. Dkt. 15. Defendant asks
the undersigned to preclude Plaintiff from deposing Department of Corrections Secretary

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Warner, who is a cabinet level member of the governor’s staff. Dkt. 15 p. 3. Defendant’s

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motion is based upon Defendant Warner’s position as a high level government official and on an

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argument that the deposition is unduly burdensome compared to any information that could be

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obtained. Dkt 15, pp. 4-5.

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Plaintiff argues that Mr. Warner is the only person who can answer questions “about the
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scope of his knowledge and the reasons for his actions or inactions.” Dkt. 16, p.1.

ORDER - 1

FACTUAL BACKGROUND

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This lawsuit involves claims against the Department of Corrections Secretary, Bernard
Warner, and Chief Medical Officer, Steven Hammond, M.D., for allegedly violating Plaintiff’s
Eighth Amendment rights by acting with deliberate indifference to an orthopedic condition

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involving Mr. Hammond’s right knee. Dkt. 16, p. 2. Plaintiff contends that the Care Review
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Committee (CRC) process used to make medical referrals is problematic and states that he seeks
to explore Mr. Warner’s knowledge about the process. Id.
The process for referrals involves a Care Review Committee making a decision as to

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whether a requested procedure or medical treatment is necessary. Plaintiff does not allege that

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Mr. Warner is a member of that committee and acknowledges that the head of the committee is

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Defendant Hammond. Dkt. 16, p. 2. Plaintiff’s counsel sent Mr. Warner a number of letters

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concerning inmates who had been denied treatment by CRC decisions (Dkt. 17, pp. 17-25) and
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Plaintiff seeks to explore Defendant Warner’s knowledge of alleged problems with the CRC
process. Dkt. 16, p. 2.
Plaintiff propounded interrogatories to Mr. Warner but states that “interrogatories are not
an effective tool to elicit details or to explore the scope of a party’s knowledge or his subjective
reasons for taking various actions (or not taking them).” Dkt. 16, p. 1. Despite the argument that
interrogatories are not an effective tool, Plaintiff has served at least two sets of interrogatories on

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Mr. Warner along with requests for admissions and requests for production. Dkt. 15-1, pp. 3-4.
DISCUSSION

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A court has broad discretionary powers to control discovery. Little v. City of Seattle, 863

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F.2d 681, 685 (9th Cir. 1988). Upon showing of good cause, a court may deny or limit

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discovery. Fed. R. Civ. P. 26(c). High ranking government officials are not normally subject to
ORDER - 2

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depositions. See, Kyle Engineering Co. v. Kleppe, 600 F.2d 226, 232 (9th Cir. 1979); Bogan v.

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City of Boston, 489 F.3d 417, 423 (1st Cir. 2007); In re United States, 197 F.3d 310, 313-14 (8th

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Cir. 1999); In re United States, 985 F.2d 510, (11th Cir. 1993); Green v. Baca, 226 F.R.D. 624,

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648 (C.D. Cal. 2005). A party seeking to depose a high ranking official must show that the

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evidence they seek to obtain is unavailable from other sources. Green, 226 F.R.D. at 648-49.
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The discussion in Green is informative:
The need to limit the use of subpoenas served on high government
officials was recognized by the Supreme Court in United States v. Morgan, 313
U.S. 409, 421–22, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). There, the district court
allowed plaintiffs to take the deposition of the Secretary of Agriculture regarding
decisions made in his official capacity, and subsequently to call him to testify at
trial. The Court stated that this type of examination of a high government official
threatened to undermine the “integrity of the administrative process.” Id at 422,
61 S.Ct. 999. Other courts have recognized that high public officials “should
not, absent extraordinary circumstances, be called to testify regarding their
reasons for taking official actions.’ ” In re United States, 985 F.2d 510, 512
(11th Cir.1993)(quoting Simplex Time Recorder Co. v. Secretary of Labor, 766
F.2d 575, 586 (D.C.Cir.1985)); see Kyle Eng. Co. v. Kleppe, 600 F.2d 226, 231–
32 (9th Cir.1979) (“Heads of government agencies are not normally subject to
deposition and the district court’s order directing [the Administrator of the Small
Business Administration] to answer interrogations in lieu of a deposition does not
appear unreasonable” (internal citation omitted)); Warzon v. Drew, 155 F.R.D.
183, 185 (E.D.Wis.1994)(“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”). “An exception to this general rule exists concerning top
officials who have direct personal factual information pertaining to material issues
in an action ... [and] where the information to be gained .. is not available through
any other source.” Church of Scientology of Boston v. I.R.S., 138 F.R.D. 9, 12
(D.Mass.1990); see also Nagle v. Superior Court, 28 Cal.App.4th 1465, 34
Cal.Rptr.2d 281 (1994)(holding that the directors of the California Employment
Development Department and the California Department of Health Services were
not subject to deposition where plaintiff made no showing that either director had
personal knowledge of matter at issue or that information could not be obtained
through less burdensome means).

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Green, 226 F.R.D. at 648-49 (emphasis added). While Plaintiff states that he seeks information
about Defendant’s knowledge and subjective reasoning, Plaintiff fails to show that this
ORDER - 3

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information is not available through the use of other, less burdensome, discovery tools. It is

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undisputed that Secretary Warner is not on the Care Review Committee and he states that he did

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not know about Plaintiff’s knee condition until after this action was filed. Dkt. 15-1, p. 15.

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Plaintiff fails to show extraordinary circumstances that overcome the normal rule

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precluding deposing high ranking officials. Plaintiff argues that facts indicate that Defendant
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Warner is aware of “significant problems with his agency’s process for authorizing or denying

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certain types of medical care, including referrals to outside specialists. But despite this

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knowledge, he has failed to take steps to address the problems.” Dkt. 16, pp. 2. Plaintiff argues

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that Defendant Warner is aware of these facts because of letters counsel sent to him. Dkt. 16, pp.

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3-5. Obviously, information that Plaintiff’s counsel sent to Defendant Warner is available from

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other sources, including the letters themselves. Further, Plaintiff fails to show that the head of

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the Care Review Committee would not have the same information as Defendant Warner
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regarding alleged problems with the care review process. In addition, Plaintiff has available to

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him less burdensome discovery tools such as interrogatories. The undersigned finds that Plaintiff

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has failed to show extraordinary circumstances that would warrant requiring a high ranking

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government official to submit to a deposition.

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Further, it appears that Plaintiff is seeking information that is available through the use of
other discovery tools or sources. The undersigned agrees with other courts that have concluded

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that answering interrogatories in lieu of depositions is reasonable for high level government
officials. Kyle Eng. Co. v. Kleppe, 600 F.2d 226, 231–32 (9th Cir.1979).
Defendant asks for attorneys fees for bringing this motion. Fed. R. Civ. P. 37(a)(5)(A)

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states:
(5) Payment of Expenses; Protective Orders.
ORDER - 4

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(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After
Filing). If the motion is granted--or if the disclosure or requested discovery is
provided after the motion was filed--the court must, after giving an opportunity to
be heard, require the party or deponent whose conduct necessitated the motion,
the party or attorney advising that conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees. But the court
must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was substantially
justified; or
(iii) other circumstances make an award of expenses unjust.
The parties conferred and were unable to reach agreement. While it is clear that

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Defendant Warner is a high ranking government official, the Plaintiff’s purpose for taking
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Defendant Warner’s deposition is, ordinarily, an appropriate means of trial preparation. In

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addition, the Court assumes that the information being sought by the Plaintiff is available

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through other means. That may or may not prove to be the case. Although the Court has

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authorized a protective order preventing the deposition from occurring, that does not necessarily

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lead to the conclusion, in this instance, that the request was not substantially justified. The

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Defendant’s request for attorneys fees us therefore DENIED.

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Accordingly, it is ORDERED:
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The motion to quash the deposition of Defendant Warner is GRANTED.

DATED this 2nd day of February, 2015.

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A

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Karen L. Strombom
United States Magistrate Judge

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ORDER - 5