CARA LESLIE ALEXANDER, et al.,
OF INVESTIGATION, et al.,
) Civil No. 96-2123, 97-1288 (RCL)
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiffs' Motion to Compel Re-Designation
of Witness Concerning "WHODB" Under Fed. R. Civ. P. 30(b)(6) and for Attorneys'
Fees and Costs. Upon consideration of this motion, defendant Executive
Office of the President's opposition, and plaintiffs' reply thereto, the
Court will DENY plaintiffs' motion, as discussed and ordered below.
The underlying allegations in this case arise from what has become popularly known as "Filegate." Plaintiffs allege that their privacy interests were violated when the FBI improperly handed over to the White House hundreds of FBI files of former political appointees and government employees under the Reagan and Bush Administrations. The instant dispute revolves around the deposition of Kathy W. Jackson, a computer specialist employed by the Information Systems and Technology Division, Office of Administration, within the Executive Office of the President (EOP).
Jackson was designated to testify by defendant EOP pursuant to Fed. R. Civ. P. 30(b)(6). Rule 30(b)(6) states, in pertinent part, that:
A party may in the party's notice and in a subpoena name as the deponent
a . . . governmental agency and describe with reasonable particularity
the matters on which examination is requested. In that event, the organization
so named shall designate one or more officers, directors, or managing agents,
or other persons who consent to testify on its behalf, and may set forth,
for each person designated, the matters on which the person will testify.
. . . This subdivision (b)(6) does not preclude taking a deposition by
any other procedure authorized in these rules.
Fed. R. Civ. P. 30(b)(6). Plaintiffs originally named defendant EOP
in its notice of deposition and described "the matter on which examination is requested" as "the computer systems commonly known as or referred to as 'Big Brother' and/or 'WHODB.'" Plaintiffs' Notice of Rule 30(b)(6) Deposition.(1)
Plaintiffs seek to elicit testimony on the WhoDB because, in their view, it could "likely produce highly relevant evidence of the misuse of government files." Plaintiff's Mot. to Compel at 2. The plaintiffs point to statements made by Linda Tripp that she witnessed information from FBI files being loaded onto White House computers, hence one of the plaintiffs' alleged White House connections to the FBI files matter. From this point, plaintiffs theorize that the computer system onto which Tripp saw this FBI information being loaded was the WhoDB. This theory appears to be based primarily on the fact that James Carville produced, in connection with his deposition, a file denominated "Filegate" which contained a newspaper article on the WhoDB.
This is not the first time this Court has needed to address the WhoDB deposition. Defendant EOP earlier moved for a protective order to preclude testimony about the WhoDB because, in its view, the WhoDB does not track any information related to FBI background investigations of current or former employees. In its April 13, 1998 Memorandum and Order, however, the Court denied defendant EOP's motion for a protective order on this point. In that opinion, the Court noted that the "[p]laintiffs' conclusion is not unreasonable and they are entitled to depose an individual knowledgeable about this potential source of information." Alexander v. FBI, C.A. 96-2123, Memorandum and Order at 16 (D.D.C. Apr. 13, 1998).
In a letter sent after the issuance of the Court's April 13 Memorandum and Order from plaintiffs' counsel to defendant EOP's counsel, the specific areas of inquiry as to the Rule 30(b)(6) designation were stated with greater specificity. This letter enumerated seven categories of pertinent testimony:
(1) what systems (including equipment and databases) are used to provide
(2) who is responsible for maintaining and operating the systems (including
compliance with applicable laws and regulation to presidential/federal
(3) what instructions, guidelines, rules and training are provided to
officials and appointees in connection with these systems;
(4) what information is collected and stored on the systems;
(5) how information stored may be retrieved (and, if necessary, reconstructed);
(6) who has access to the systems and how is such access controlled
and monitored. (This would include information about access control, inventory
and property tracking methodologies concerning computers and e-mail devices
and systems assigned and/or accessible to, and actually accessed by, Defendants
Clinton, Nussbaum, Livingstone, and Marceca (and their assistants, including
interns, and volunteers) since 1992); and
(7) other relevant testimony and testimony that may lead to relevant evidence.
Letter of April 28, 1998, from Plaintiffs' Counsel to Defendant EOP's
Counsel. Defendant EOP designated Jackson as their Rule 30(b)(6) witness
on the WhoDB, and her deposition was taken on July 7, 1998. The dispute
currently before the Court involves whether both parties complied with
their duties under Fed. R. Civ. P. 30(b)(6), and if not, what the consequences
of that dereliction should be.
Rule 30(b)(6) of the Federal Rules of Civil Procedure ultimately puts certain burdens on both parties. The initial burden under this rule falls on the plaintiffs. Specifically, before defendant EOP even needed to designate a witness under the notice of deposition, plaintiffs must have "described with reasonable particularity the matters on which examination is requested." Fed. R. Civ. P. 30(b)(6). Some argument can be made that this description of subject matter must be given in the notice of deposition, as the rule opens with the phrase, "A party may in the party's notice . . . name as the deponent a . . . governmental agency and describe with reasonable particularity the matters on which examination is requested." Fed. R. Civ. P. 30(b)(6). Defendant EOP argues that such a description was not given here, because both plaintiffs' original notice of deposition and their subsequent re-notice of deposition merely state that the subject matter of inquiry will be "the computer systems commonly known as or referred to as 'Big Brother' and/or 'WHODB.'" Plaintiffs' Notice of Rule 30(b)(6) Deposition. Because, in defendant EOP's view, plaintiffs have not met their initial Rule 30(b)(6) burden, plaintiffs have no valid argument on Jackson's inability to answer questions propounded to her at her deposition.
The Court rejects defendant EOP's argument on this point. Plaintiffs have met their initial burden of noticing the Rule 30(b)(6) deposition and describing with reasonable particularity the subject matter of the testimony sought. First, the Court believes that the designation contained in both notices of deposition is sufficient. As defendant EOP itself points out, the implied limit of discoverability in any discovery device is Fed. R. Civ. P. 26(b)(1). That is, plaintiffs specifically stated that they wanted testimony on the WhoDB; when combined with Rule 26(b)(1), the limits of that testimony is "any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . . The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Both parties are well aware of the discoverable issues in this case (whether they choose to abide by them or not). Defendant EOP was on sufficient notice of what discoverable matters the plaintiffs would inquire into on the WhoDB deposition. On the facts of this case, the Court finds that further specificity is not required by Rule 30(b)(6). Second, plaintiffs sent a letter to defendant EOP specifically enumerating seven areas of testimony on which the WhoDB witness (who was subsequently named) would be expected to testify. See Letter of April 28, 1998, from Plaintiffs' Counsel to Defendant EOP's Counsel. Although this letter obviously did not fall within the four corners of plaintiffs' notice of deposition, defendant EOP was clearly put on notice of the subject matters on which Jackson would be expected to testify. See United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996) (stating that the "reasonable particularity" requirement of Fed. R. Civ. P. 30(b)(6) was met by notice given to the defendant-designator by means outside of the notice of deposition). Because the plaintiffs included sufficient particularity on the subject matter of the WhoDB deposition in their notice of deposition, re-notice of deposition, and subsequent explanatory letter, the plaintiffs have met their initial burden.
Under Rule 30(b)(6), once plaintiffs noticed the deposition and described the subject matter to be inquired upon with reasonable particularity, a number of duties were triggered that must be met by defendant EOP, as the party named in the notice. First, and most obviously, defendant EOP must designate one or more persons to testify on the subject matter designated by plaintiffs. Defendant EOP met this burden, at least to some degree, by designating Jackson. Defendant EOP states that Jackson was designated because she had the broadest base of knowledge available that would be responsive to plaintiffs' inquiries. The Court has reviewed the entire transcript of the Jackson deposition and finds nothing that would rebut this assertion. Jackson was able to answer many of plaintiffs' relevant questions, as discussed more fully below. Although there were some relevant questions that Jackson was unable to answer, and she was generally able to state who would be most likely to be able to answer those questions, it cannot be said that Jackson was an improper Rule 30(b)(6) witness.
Although plaintiffs embellish upon Jackson's testimony in an attempt to assert that she was a wholly inappropriate witness, plaintiffs have overstated their case in this regard. Plaintiffs' best argument, however, is that Jackson's designation alone is inadequate for defendant EOP to meet their Rule 30(b)(6) burden. This argument calls into play certain duties that are not explicitly made a part of the rule.
Although there is not an abundance of case law on the topic of Rule 30(b)(6), and nearly no case law in this circuit, certain principles are consistent in every court opinion to address these issues so far. First, the deponent has the duty of being knowledgeable on the subject matter identified as the area of inquiry. See United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996); SEC v. Morielli, 143 F.R.D. 42, 44-45 (S.D.N.Y. 1992); In re Air Crash Disaster at Detroit Metro. Airport, 130 F.R.D. 627, 630-32 (E.D. Mich. 1989). Clearly, a deponent that does not know about the subject matter to be inquired about is useless as a deponent at all. Second, the designating party is under the duty to designate more than one deponent if it would be necessary to do so in order to respond to the relevant areas of inquiry that are specified with reasonable particularity by the plaintiffs. See Fed. R. Civ. P. 30(b)(6) ("[T]he organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf . . . ." (emphasis added)); Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995) ("Citibank seems to believe that it can satisfy Rule 30(b)(6) by producing a witness with only selected information to offer. . . . The Federal Rules and this Court do not countenance self-selecting discovery by either party."). Third, the designating party has a duty to prepare the witness to testify on matters not only known by the deponent, but those that should be reasonably known by the designating party. See Fed. R. Civ. P. 30(b)(6) ("The persons so designated shall testify as to matters known or reasonably available to the organization."); Protective Nat'l Ins. v. Commonwealth Ins., 137 F.R.D. 267, 277-78 (D. Neb. 1989). Obviously, the purpose of a Rule 30(b)(6) deposition is to get answers on the subject matter described with reasonable particularity by the noticing party, not to simply get answers limited to what the deponent happens to know. Fourth, the designating party has a duty to substitute an appropriate deponent when it becomes apparent that the previous deponent is unable to respond to certain relevant areas of inquiry. See United States v. Taylor, 166 F.R.D. 356, 360 (M.D.N.C. 1996); Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989). All of these duties correspond to the ultimate underlying purposes of Rule 30(b)(6)--namely, preventing serial depositions of various witnesses without knowledge within an organization and eliminating "bandying," which is the name given to the practice in which people are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to the organization itself. See Fed. R. Civ. P. 30(b)(6) Advisory Committee Notes, 1970 Amendment.
Plaintiffs argue that defendant EOP has violated either some or all of these duties because Jackson was unable to answer several questions posed by plaintiffs' counsel. Because of this lack of knowledge, plaintiffs move to compel defendant EOP to "re-designate" one or more appropriate Rule 30(b)(6) witnesses. Defendant EOP contends that Jackson was the proper designee because she possesses the broadest base of responsive knowledge, and that any required further inquiry should be done through less burdensome means such as interrogatories and requests for production.
Upon a review of the parties' memoranda and the deposition transcript, the Court agrees with both of the parties' contentions in certain respects. Namely, the plaintiffs are entitled to answers to some of the questions that were posed at the deposition and that could not be answered by Jackson, but these unanswered questions do not warrant new oral depositions at this juncture.
Jackson testified ably with regard to numerous questions spanning the spectrum from the purpose of the WhoDB to the nature of the information stored in the database itself and the specific names of certain users. Jackson stated that the WhoDB was designed as a resource database for all White House events and contacts. This purpose is seen in WhoDB's uses as a tracking device for White House function attendance logs and White House holiday card lists. This database, which became functional in 1995, was created because the White House lacked a central repository for contact information on individuals and groups important to the President and First Lady. Initially, there were 150 authorized users of the WhoDB. According to Jackson, the current number of users has fallen to 66.
Jackson also testified in detail about the technical set-up of the WhoDB. As is common with databases, the WhoDB includes individual records with various fields, such as name, gender, martial status, address, and a variety of others.(2) According to Jackson's testimony, she searched the WhoDB in various ways to determine if it included any type of coding for perceived adversaries of the White House; she found nothing that would so indicate. As Jackson explains, even assuming that the WhoDB was a repository for information on White House adversaries, the only field in which information could be readily added on any given person at any length is the "comments" field. Jackson did a search of the comments field and came up with no such information. Any information stored in the comments field would be limited to 240 characters. Among 460,000 active records on the WhoDB, there are no more that 2,200 comments containing information of any kind.
Although the usefulness of testimony on user access appears to be limited given the apparent inability to use the WhoDB to store FBI file information, Jackson nonetheless testified extensively on user access. In short, she testified that she "is sure" that the software and computer hardware necessary to access WhoDB is not installed outside of the White House complex. Thus, in her view, other potential routes of access to the WhoDB to the White House, such as the Democratic National Committee, are highly unlikely. As Jackson also testified, she only knows of one person in the White House Counsel's Office that has had access to the WhoDB--Bruce Lindsey. Jackson does not, however, know why Lindsey had or needed such access.
As can be seen from Jackson's testimony, she testified knowledgeably on a wide array of subject matter. That being said, however, Jackson was unable to testify to several lines of inquiry by plaintiffs' counsel. Although the Court does not wish to engage at this time in an analysis of the relevance of each and every unanswered question at Jackson's deposition because such an analysis is not necessitated by the motions before the Court, one example of a relevant, unanswered question would be about the data that went on the WhoDB when the system was first set up. Jackson Depo. at 289. Plaintiffs are entitled to these types of answers, and the Court will not allow these questions to go unanswered simply because Jackson was the person with the broadest base of knowledge. Defendant EOP has a duty to designate more than one person, if necessary, and has a duty to do so on its own when it becomes apparent that the current designee cannot adequately respond. Therefore, the Court will allow plaintiffs to receive responses to questions that went unanswered at the Jackson deposition.
The Court will not, however, allow plaintiffs to receive answers to
these questions at this time by means of new oral depositions. As explained
in the Court's order below, the Court will deny plaintiffs' motion for
a new Rule 30(b)(6) witness without prejudice. If, after they have received
written discovery responses on this issue and have taken the deposition
of Betsy Pond,(3) a new Rule 30(b)(6) WhoDB
witness becomes necessary, plaintiffs may again move to compel the Court
to grant them such relief at that time. As the plaintiffs themselves suggest
in their motion to compel, Jackson indicated that several of the questions
that she could not answer may be better posed to several other people.
In reviewing the deposition transcript, the Court does not believe that
the importance or number of these unanswered questions warrants entirely
new depositions. Instead, the plaintiffs shall submit any questions for
which they did not receive answers upon defendant EOP in the form of interrogatories
and requests for production. See United States v. Massachusetts
Indus. Finance Agency, 162 F.R.D. 410 (D. Mass. 1995) (allowing the
same remedy for incomplete testimony by a Rule 30(b)(6) witness when new
oral depositions were unwarranted). The fact that Jackson was an inadequate
witness in certain narrow respects does not lead to the conclusion, on
the facts of this case, that the plaintiffs are entitled to take several
new depositions. Deponents under Rule 30(b)(6) must be prepared and knowledgeable,
but they need not be subjected to a "memory contest." See Zappia
Middle East Construction Co. v. Emeriate of Abu Dhabi, No. 94-CIV-1942,
1995 WL 686715 (S.D.N.Y. Nov. 17, 1995).
Plaintiffs ask to be reimbursed for their attorneys' fees and costs accrued as a result of the Jackson deposition and subsequent motions thereto. Plaintiffs base their motion on Rule 37 of the Federal Rules of Civil Procedure. The leading case on Rule 37 sanctions for the inappropriate designation of the Rule 30(b)(6) witness is Resolution Trust Corp. v. Southern Union Co., 985 F.2d 196, 197 (5th Cir. 1993). In Resolution Trust Corp., the Fifth Circuit summarized the relevant proposition in the following manner:
Rule 37 authorizes the district court to impose sanctions against a
party for failing to appear "before the officer who is to take the deposition,
after being served with the proper notice." . . . Rule 30(b)(6) . . . places
the burden of identifying responsive witnesses for a corporation on the
corporation. Obviously, this presents a potential for abuse which is not
extant where the party noticing the deposition specifies the deponent.
When a corporation or association designates a person to testify on its
behalf, the corporation appears vicariously through that agent. If that
agent is not knowledgeable about relevant facts, and the principal has
failed to designate an available, knowledgeable, and readily identifiable
witness, then the appearance is, for all practical purposes, no appearance
Id. at 197. Thus, in short, the Fifth Circuit found that the improper Rule 30(b)(6) designation on the facts of that case amounted to a failure to appear under Rule 37, thereby warranting sanctions.
Although the plaintiffs attempt to bring the Jackson deposition within
the Fifth Circuit's analysis, the facts belie such a conclusion. As stated
above, Jackson testified adequately in numerous respects. When she could
not so testify, Jackson generally provided the name of the person that
could answer plaintiffs' counsel's questions. Jackson appears to be an
appropriate choice for a Rule 30(b)(6) witness. Rule 30(b)(6) puts several
duties on the designating party and on the deponent, but one of them is
not omniscience. Although plaintiffs are entitled to answers on many of
their unanswered questions, they are not entitled to sanctions. Jackson's
deposition can hardly be said to be tantamount to a failure to appear under
Rule 37. Therefore, plaintiffs' request for attorneys' fees and costs will
For the reasons stated above, the Court HEREBY ORDERS that Plaintiffs' Motion to Compel Re-Designation of Witness Concerning "WHODB" Under Fed. R. Civ. P. 30(b)(6) and for Attorneys' Fees and Costs is DENIED without prejudice. In this regard, the Court hereby ORDERS that:
1. Plaintiffs may submit to defendant EOP interrogatories and requests for production in order to receive responses to questions posed by plaintiffs' counsel at Jackson's deposition to which Jackson did not adequately respond.
2. Plaintiffs' request to take new Rule 30(b)(6) oral depositions on the WhoDB pursuant to a re-designation of such witnesses is DENIED without prejudice.
3. Plaintiffs' request for attorneys' fees and costs is DENIED.
4. Plaintiffs may renew their motion to compel a re-designation of a Rule 30(b)(6) WhoDB witness, for good cause shown, after they have received written discovery responses and taken the deposition of Betsy Pond.
5. Leave to depose Ms. Pond is HEREBY GRANTED, sua sponte.
Date: Royce C. Lamberth
United States District Judge
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CARA LESLIE ALEXANDER, )
et al., )
v. ) Civil No. 96-2123
FEDERAL BUREAU OF )
INVESTIGATION, et al., )
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiffs' Motion to Compel Further
Testimony and Further Production of Documents from Non-Party Harold Ickes,
for Appointment of a Special Master, for Criminal Contempt and Perjury
Proceedings, and for Sanctions, Including Attorneys' Fees and Costs. Upon
consideration of this motion, the oppositions of defendant Executive Office
of the President and non-party Ickes, and plaintiffs' replies thereto,
the Court will GRANT IN PART and DENY IN PART Plaintiffs' motion, as discussed
and ordered below.
The underlying allegations in this case arise from what has become popularly
known as "Filegate." Plaintiffs allege that their privacy interests were
violated when the FBI improperly handed over to the White House hundreds
of FBI files of former political appointees and government employees under
the Reagan and Bush Administrations. The instant dispute revolves around
the deposition of Harold Ickes, former Deputy Chief of Staff and Assistant
to the President at the White House from January 1994 until January 1997.
The disputes currently before the Court divide up into three general categories:
(1) threshold issues, including service of process of the subpoena and
the timeliness of objections to plaintiffs' subpoena duces tecum; (2) document
production issues, including relevance, privileges, and re-deposition regarding
document production searches; and (3) pure testimonial issues, including
privileges, leave for re-deposition, and compelling testimony on unanswered
II. Threshold Issues
A. Service of Process
The Ickes deposition took place on May 21, 1998. Given some of the testimony during this deposition and some of the discussion in plaintiffs' and Ickes' legal memoranda, the Court must first address a service of process matter. It is well settled that, under Fed. R. Civ. P. 45(b), Ickes' deposition subpoena must have been personally served upon him. See FTC v. Compagnie de Saint-Gobain-Port-a-Mousson, 636 F.2d 1300, 1312 (D.C. Cir. 1980); Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2454, at 24 (1995). Plaintiffs and Ickes have two contrasting stories on the facts with regard to when and whether personal service of process occurred.
Plaintiffs claim that Ickes was personally served with a subpoena on April 29, 1998, which is supported by the Affidavit of Service of Process. This certified affidavit, sworn to by the process server, states that service was made upon Harold Ickes, on April 29, 1998, at 8:00 p.m., at his residence in Washington, D.C. The affidavit goes on to give a physical description of Ickes, which further evidences the argument for personal service upon him. Based on this evidence, plaintiffs claim that Ickes was personally served in compliance with Fed. R. Civ. P. 45(b).
As Ickes points out in his memorandum in opposition to plaintiffs' motion to compel, he testified at his deposition that he was never personally served with the subpoena. Ickes Depo. at 6-8. Specifically, Ickes contends that the first time he saw the subpoena was approximately one and one-half weeks before the deposition, when his wife called it to his attention. Id. at 7. According to Ickes, "Apparently, it had been stuffed in my mailbox or left on the front door, on the front steps of my house." Id. Hence, Ickes claims that he was not personally served with the subpoena as required by Rule 45.
In spite of the this factual dispute, Ickes never raises with the Court a legal issue regarding service of process. Apparently, this entire discussion is included in Ickes' brief as background (according to the title it falls under) on how he has been attempting to cooperate with plaintiffs' discovery requests in this case. Ickes Opp. to Plaintiffs' Mot. to Compel at 3, 3-4 ("Mr. Ickes, moreover, cooperated with plaintiffs' discovery requests in this case, even though he was not properly served with a subpoena.") The main text of Ickes' brief in this regard merely states that Ickes was not properly served under Rule 45, but never asks for any form of relief. Id. One footnote, number 3, gives more detail as to the rule requiring personal service of a subpoena and recounts the history of how Ickes attempted to resolve this service problem with plaintiffs' counsel. Ickes goes on to state that plaintiffs' counsel would not agree to waive his timeliness objections to Ickes' responses to plaintiffs' subpoena duces tecum, so Ickes decided to voluntarily appear at the deposition but also "preserve his objections based on improper service" in a letter to plaintiffs' counsel. Again, Ickes never requests, by implication or otherwise, any kind of relief from the Court on these "preserved objections." Ickes does not provide any argument on the consequences of any such improper service. Based on these circumstances, the Court concludes that Ickes has not raised an issue as to improper service of process. The issue is therefore waived.
B. Timeliness of Ickes' Original Set of Objections
Plaintiffs contend that Ickes' objections to plaintiffs' subpoena duces
tecum are untimely. Rule 45 of the Federal Rules of Civil Procedure sets
the deadline for objecting to a subpoena duces tecum by reference to the
date of service of the subpoena. Fed. R. Civ. P. 45(c)(2)(B). Under Rule
45, Ickes must have objected within fourteen days after the date of service.
Ickes' original set of objections was filed on May 13, 1998, the last day
to file timely objections under Rule 45, assuming plaintiffs' version of
the facts.(4) Even assuming plaintiffs'
version of the facts as to service of the subpoena, plaintiffs' original
objections were timely. Therefore, plaintiffs' argument on the timeliness
of Ickes' original set of objections is without merit.
III. Document-Related Issues
Plaintiffs ask this Court to grant them several forms of relief regarding the production of documents, and questioning related to the search for these documents, in response to plaintiffs' subpoena duces tecum. These document-related disputes can be broken down into the following three categories: (1) documents under Ickes' control at his residence in Salt Air, on Fire Island, New York; (2) documents under Ickes' control at 16 West 77th St., New York City; and (3) documents contained in 35-50 boxes removed from the White House by Ickes. With respect to each of these categories, plaintiffs want a special master to be appointed; all documents to be produced to the special master; the special master to produce all responsive, non-privileged documents; and to be able to question Ickes regarding the details of the search for documents.
1. Salt Air, on Fire Island, New York
Ickes testified at his deposition that he uses this "residence" as a vacation home. Plaintiffs' counsel asked whether Ickes kept at this location any documents generated during his work on the Clinton Primary campaign, presidential campaign, or in the White House. Ickes could not say that no such documents existed at the Fire Island location; instead, he stated that "I'm not sure, but I have a high degree of doubt that there are." Ickes Depo. at 46. Based on this testimony, plaintiffs seek the various forms of aforementioned relief.
Ickes responds that an order compelling plaintiffs' requested relief is unnecessary because the issue is moot. After his deposition, Ickes visited his Fire Island home, searched for documents, and found none responsive to plaintiffs' requests. He has filed a declaration, under penalty of perjury, so stating. Ickes Decl. ¶ 7. Plaintiffs reply by asking for leave to re-depose Ickes on these searches, since they were not able to do so at his original deposition.
2. 16 West 77th St., New York City
As with the Fire Island dispute, plaintiffs questioned Ickes regarding
his document production under the subpoena duces tecum with regard to Ickes'
former New York City apartment. Ickes lived in this apartment until approximately
January of 1994, at which time he moved to Washington, D.C. to work as
a member of the White House staff. Although Ickes never succinctly responded
at his deposition to plaintiffs' inquiries regarding the adequacy of the
search of the New York storage facility (in the basement of his New York
apartment building) into which any remaining documents were placed at the
time of his move to Washington, he has two explanations for why the facility
was not searched. First, any documents contained at the New York City apartment
would have pre-dated his employment at the White House, and therefore the
only documents that could have been potentially responsive to plaintiffs'
subpoena duces tecum were those related to Ickes' work on the President's
1992 campaign. As to that limited set of responsive documents, Ickes testified
that by the time of his deposition (and preceding his document search under
the current subpoena), he had given all such documents to his attorneys
in response to various other investigative requests over the past four
years. Hence, although the New York City storage facility associated with
his previous residence was never formally searched, any responsive documents
once under his control at that location were in the custody of his attorneys
and properly searched pursuant to the subpoena duces tecum. In addition
to these two points, Ickes notes that since the time of his deposition,
he has sold his New York City apartment and transferred all of the documents
that were stored along with it to Washington. As with the Fire Island scenario,
Ickes claims to have searched these documents and confirms that none responsive
to plaintiffs' requests were found. Ickes Decl. ¶ 6. Again, plaintiffs
object to these post-deposition declarations and seek leave to cross-examine
Ickes about the statements contained therein.
3. Documents Removed from White House
As with the previous two searches, plaintiffs' counsel sought to examine Ickes on his search with regard to approximately 35-50 boxes of documents that Ickes took with him when he left the White House around January 20, 1997. Ickes testified that he did not personally search these boxes because he had already turned them over to his attorneys; instead, his attorneys searched them for documents responsive to plaintiffs' subpoena duces tecum. Plaintiffs agree that such a course of action is perfectly acceptable but still wish to inquire into the adequacy of the search.(5) Of course, plaintiffs' counsel could not ask questions of Ickes' counsel, so he directed questions to Ickes about what his counsel had told him about her search.
Ickes' counsel objected to questions regarding what she told her client on the ground of attorney-client privilege. However, Ickes' counsel stated for the record that all responsive, non-objectionable documents in the boxes Ickes removed from the White House were produced.
Before turning to plaintiffs' various requests for document-related relief, the Court must first address the issue of relevancy. To the extent that plaintiffs seek to compel information not reasonably calculated to lead to the discovery of admissible evidence in this case, they would not be entitled to an order compelling such production. Fed. R. Civ. P. 26(b).
The Court finds that plaintiffs' inquires regarding documents kept by Ickes at his New York City apartment storage facility seek irrelevant matter. It is undisputed that Ickes stopped residing at that apartment before he even came to work for the White House. Plaintiffs have elicited no testimony to the effect that Ickes sent documents to that storage facility after he began working for the White House. The Court can see no reason why any such documents would be relevant to the subject matter in this case. Therefore, to the extent plaintiffs seek relief based on documents kept under Ickes' control at his former New York City apartment residence, plaintiffs' motion will be denied.
The same cannot be said, however, about plaintiffs' inquiries about the document production with regard to Fire Island and the White House document removal. Thus, the Court must proceed with its analysis with respect to these two categories of requests.
C. Plaintiffs' Requested Relief
1. Special Master and a Second Document Production
As stated above, plaintiffs ask this Court to appoint a special master; to compel Ickes to produce all documents from his Fire Island and New York City properties to the special master; to order the special master to cull the documents for responsive, non-privileged documents; and to order the special master to produce these documents. Because the Court has already found the New York City apartment inquiries to be irrelevant, this issue reduces itself to the Fire Island vacation home and White House document removal searches.
The Court finds that an appointment of a special master, along with the related relief described in the preceding paragraph, is unnecessary. As an initial matter, the Court notes that the appointment of a special master is an extraordinary action. As Fed. R. Civ. P. 53(b) states, a "reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated." See also 9A Wright & Miller, supra, § 2601 (noting that the appointment of a special master is only justified in rare circumstances). Moreover, the D.C. Circuit has found referral to a special master to be erroneous in situations far more complicated than the one presented in this case. See United States v. Microsoft Corp., 147 F.3d 935, 953 (D.C. Cir. 1998). Thus, the Court views plaintiffs' request for a special master on this discovery dispute with great skepticism.
Taking Ickes' and his counsel's representations at face value, it appears that the issue of compelling production is moot. Both searches have already been conducted. Ickes states in his declaration that he visited his Fire Island vacation home after the deposition and confirmed his earlier belief that it contained no documents responsive to plaintiffs' subpoena duces tecum. Although the issue of plaintiffs' entitlement to cross-examine Ickes on these representations is a separate matter and addressed below, the fact remains that a search has now been done. Moreover, Ickes' attorneys have searched the boxes that Ickes removed from the White House. Plaintiffs point to nothing that inherently calls these representations into doubt. Thus, the issue of compelling a re-production of documents is moot.
2. Testimony Related to the Document Searches
Aside from issues of actual document production, plaintiffs seek to depose Ickes on the statements given in his declaration regarding the Fire Island search. Plaintiffs also want the Court to compel answers to questions posed to Ickes at his deposition regarding his counsel's search of the 35-50 boxes he removed from the White House at the time his employment ended. The Court will grant both requests.
The Court will grant plaintiffs leave to redepose Ickes insofar as they seek to interrogate him on the accuracy and truthfulness of the statement made in his declaration filed subsequent to his deposition as it relates to his search for documents at his Fire Island vacation home. The Court has recently discussed the issue of filing post-deposition declarations in response to questions posed at the deposition. See Alexander v. FBI, Memorandum Opinion, C.A. 96-2123 (D.D.C. Dec. 7, 1998) (discussing the deposition of Terry Good).
Under Fed. R. Civ. P. 30(a)(2), a party must get leave of court to redepose a person who has already been deposed in the same case. This rule provides that such leave shall be granted to the extent that it would be consistent with the principles enunciated in Fed. R. Civ. P. 26(b)(2). The guiding factors in this inquiry are whether:
(i) the discovery sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient, less burdensome,
or less expensive;
(ii) the party seeking discovery has had ample opportunity by discovery
in the action to obtain the information sought; or
(iii) the burden or expense of the proposed discovery outweighs its
likely benefit, taking into account the needs of the case, the amount in
controversy, the parties' resources, the importance of the issues at stake
in the litigation, and the importance of the proposed discovery in resolving
Fed. R. Civ. P. 26(b)(2).
Granting plaintiffs leave to redepose Ickes on the Fire Island search comports with these principles. Clearly, the first and second factors--cumulativeness and opportunity to obtain the information in another way--favor granting leave for redeposition. Ickes had not even performed the search at the time of his deposition. The third factor--a benefit versus burden analysis--is a tougher determination. Nonetheless, the Court finds that because the plaintiffs are limited to a narrow scope of inquiry on this point, any burden suffered is negligible. Therefore, plaintiffs' request for leave to redepose Ickes on the narrow topic of the Fire Island search will be granted.
The plaintiffs' request to compel answers to questions posed to Ickes regarding his attorney's search of the 35-50 boxes of documents removed by Ickes from the White House raises different issues. Under Fed. R. Civ. P. 26(b)(2), the plaintiffs are entitled to obtain discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . including the existence, description, nature, custody, condition, and location of any . . . documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter." Ickes does not dispute the propriety of the general subject matter of these questions, but instead claims that the specific inquires posed by plaintiffs' counsel trigger the attorney-client privilege. See supra note 4 (listing the questions asked by plaintiffs' counsel on this topic).
The Court will grant plaintiffs' motion to compel Ickes to answer these
two questions, and will further grant plaintiffs leave to ask Ickes reasonable
follow-up questions on his knowledge of this search. Ickes' counsel stated
for the record that she searched the 35-50 boxes at issue and "produced
any responsive, non-objectionable documents." Ickes Depo. at 91-92. To
the extent that plaintiffs' counsel asked questions about the document
search that impinged on the attorney-client privilege, this privilege was
waived by Ickes' counsel's statement. Because plaintiffs' counsel has already
received answers to his questions through the statements of Ickes' counsel,
he may very well receive the same answers from Ickes. Indeed, Ickes himself
states in his post-deposition declaration that "I . . . instructed my attorneys
to make a diligent and good faith search of my documents maintained at
their law firm. They advised me that they did so." Ickes Decl. ¶ 4.
Nonetheless, the Court cannot say that the confidentiality of this information
has in any way been protected when Ickes' lawyer and Ickes himself have
both voluntarily released this matter on the record. Therefore, Plaintiffs
are entitled to answers to the two questions posed in the deposition for
which they seek to compel answers, along with reasonable follow-up questions
tailored to inquire into the adequacy of the search of the 35-50 boxes
IV. Pure Testimonial Issues
Plaintiffs raise two different issues on pure testimonial matters in connection with the Ickes deposition. First, plaintiffs seek an order compelling Ickes to answer questions regarding a discussion that he claims to have had with the President regarding Kathleen Willey.(6) In his deposition, Ickes testified that he "did have a very brief conversation about [Willey]" with the President. Ickes Depo. at 159. However, when asked about the substance of the conversation, counsel for defendant EOP instructed Ickes not to answer, as seen in the following exchange:
[By plaintiffs' counsel:] What did you discuss about Kathleen Willey?
[By EOP's counsel:] I'm going to object to that and instruct him not
[By plaintiffs' counsel:] You can respond?
[By EOP's counsel:] No, he can't respond. I'm going to instruct him
not to answer. That is a conversation that is subject to a variety of privileges.
[By plaintiffs' counsel:] Which privileges?
[By EOP's counsel:] A variety of privileges.
[By plaintiffs' counsel:] Well, name them.
[By EOP's counsel:] Well, it could potentially be a Presidential communication,
it could be deliberative, it could be a number of privileges.
[By plaintiffs' counsel:] Are you claiming Executive Privilege?
[By EOP's counsel:] I am instructing him not to answer on the basis
of privilege, because it could be subject to Presidential communications.
Ickes Depo. at 159-60. Defendant EOP, in its brief in opposition to plaintiffs' motion to compel, revealed that it did not wish to perfect its objections with regard to the four questions asked of Ickes about his conversations with the President. Ickes has filed a post-deposition declaration recounting the "totality of [his] recollection about [his] conversation with the President about Ms. Willey." Ickes Decl. ¶ 10. Somewhat confusingly, defendant EOP then argues that Ickes has answered all of plaintiffs' relevant questions regarding this conversation, but that "the remaining questions about his conversation with the President are simply irrelevant." Defendant EOP's Opp. at 3. The Court fails to see how Ickes can file a declaration purporting to recount all of the events he can remember on one hand, but then have government counsel argue that some other questions remain unanswered. Nonetheless, the Court finds that the Ickes declaration should not shield him from being asked the questions posed to him during his deposition, along with reasonable follow-up questions. All of plaintiffs' questions on this topic at the deposition inquired into material reasonably calculated to lead to the discovery of admissible evidence. The Court will not restate again the reasons that a post-deposition declaration will not substitute for deposition testimony on this issue. Plaintiffs' motion to compel testimony on Ickes' conversation with the President regarding Kathleen Willey will be granted.
However, the Court will not issue an order to show cause why Ickes should
not be held in contempt for perjury in purportedly feigning his memory
loss at his deposition. Without going into the laundry list of questions
asked by plaintiffs to which Ickes claimed he had no specific memory, suffice
it to say that, according to plaintiffs' calculations, Ickes testified
that he could not remember (or some equivalent thereof) approximately 84
times, for an average of once every four minutes. A full review of the
transcript of Ickes' deposition shows his remarkable inability to recall
certain memorable facts, in addition to a contentious demeanor. The Court
expresses no opinion on whether this inability is in fact genuine, or whether
Ickes' poor memory is simply a convenience. The transcript contains evidence
that might support either position under a preponderance standard. In the
case of civil contempt, however, the proof must be shown to the high standard
of clear and convincing evidence. See, e.g., Gemco Latinoamerica,
Inc. v. Seiko Time Corp., 61 F.3d 94, 98 (1st Cir. 1995); EEOC v.
Local 638, 81 F.3d 1162, 1171 (2d Cir. 1996); In re Kitchen,
706 F.2d 653, 664 (2d Cir. 1983). Indeed, for criminal contempt, proof
beyond a reasonable doubt would be required. The Court is not willing to
engage in satellite contempt proceedings on this issue at this time. Should
stronger evidence be adduced by plaintiffs at some time in the future,
then the Court can revisit the issue then. On the current record, however,
the Court believes that entering into a morass of circumstantial evidence
on feigned memory loss is unnecessary. The evidence adduced now does not
meet the clear and convincing standard. Therefore, plaintiffs' request
for the commencement of contempt proceedings will be denied.
Plaintiffs ask that the Court sanction Ickes and his counsel for their deposition conduct. Although plaintiffs never set out in their motion exactly what conduct they find sanctionable, the Court assumes that they would point to Ickes' purported feigning of his memory loss, Ickes' failure to personally conduct certain searches, Ickes' refusal to answer questions about his conversation with the President regarding Ms. Willey, and Ickes' counsel's instruction to her client to refuse to answer questions regarding her role in the search for documents responsive to plaintiffs' subpoena duces tecum. The Court will deny plaintiffs' request.
First, as discussed more fully with regard to plaintiffs' request to commence contempt proceedings, Ickes' purportedly feigned memory loss does raise some questions about the veracity of his testimony. Nonetheless, for the same reasons discussed above, the evidence presented so far on this issue does not rise to a sanctionable level.
Second, the searches conducted by Ickes and his counsel do not present sanctionable conduct. Ickes clearly stated that he did not search the Fire Island vacation home because he was almost certain that it contained no responsive documents. Ickes' attorneys, on behalf of Ickes, searched the 35-50 boxes that Ickes removed from the White House. Plaintiffs will be allowed to probe the adequacy of these searches at Ickes' next deposition, but the searches themselves do not lead to sanctions.
Third, Ickes' refusal to answer questions regarding his conversations with Willey is not sanctionable. As discussed above, he was instructed not to answer by defendant EOP's counsel on the assertion of the presidential communications privilege. Although
defendant EOP chose not to perfect this privilege, they had a right to make such an objection at the deposition given the presumptive privileged nature of such conversations. Ickes cannot be expected to answer questions over an instruction not to do so by defendant EOP's counsel. Therefore, neither Ickes' nor defendant EOP's conduct is sanctionable in this regard.
Fourth, Ickes' counsel's instruction to her client not to answer questions
probing communications between an attorney and her client regarding the
subject matter of the litigation is not sanctionable. Although the Court
ultimately holds that any confidentiality that existed on this issue was
waived by Ickes' counsel's statements, the assertion of such a privilege
cannot be said to lack substantial justification or to have been done in
bad faith. Therefore, plaintiffs' request for sanctions against Ickes'
and his counsel will be denied.
For the reasons stated above, the Court HEREBY ORDERS that Plaintiff's Motion to Compel Further Testimony and Further Production of Documents from Harold Ickes, for Appointment of a Special Master, for Criminal Contempt and Perjury Proceedings, and for Sanctions, Including Attorneys' Fees and Costs is GRANTED IN PART AND DENIED IN PART. In this regard, the Court ORDERS that:
1. Plaintiffs' request for the appointment of a special master is DENIED.
2. Plaintiffs' request that non-party Ickes produce all documents under his control at his residence in Salt Air, on Fire Island, New York and at 16 West 77th St., New York City, and all of the documents he removed from the White House is DENIED as moot.
3. Plaintiffs' motion to compel answers to the following two questions posed at his deposition is GRANTED:
(a) "Did [your counsel] show you whether or not or did she tell you whether or not she found documents that were responsive to [plaintiffs'] subpoena?"
(b) "Did you go through the various document requests in the subpoena with your counsel?"
4. Plaintiffs' request for leave to re-depose Ickes is granted only on the following subject matter:
(a) Ickes' search for documents at his Fire Island vacation home.
(b) Ickes' knowledge of the search for documents in the 35-50 boxes he removed from the White House, including what his counsel told him regarding the adequacy, means, and results of that search.
(c) Ickes' conversation with the President regarding Ms. Willey.
(d) Follow-up questions that are reasonably calculated to lead to the discovery of admissible evidence on the issues listed in sub-paragraphs (a)-(c).
5. Plaintiffs' request for the Court to institute contempt and perjury proceedings against Ickes is DENIED.
6. Plaintiffs' request for sanctions against Ickes and his counsel is
Date: Royce C. Lamberth
United States District Judge
1. WhoDB is an acronym for the White House Office Database.
2. WhoDB users do not have the ability to add their own codes or fields.
3. According to plaintiffs, Linda Tripp saw Pond inputting FBI file information into a database. Assuming the veracity of this testimony, Pond would clearly be the person who knows whether the WhoDB was actually being used for the inputting of FBI file information at all.
4. This subpart of the Memorandum Opinion will only address Ickes' original set of objections. Ickes "supplemental" objections, filed May 15, 1998, would be untimely under Rule 45, if plaintiffs' version of the facts as to service of process is accepted. Thus, a factual finding on the exact date of service of process would normally be pivotal on this issue. However, because the Court ultimately will not compel Ickes to produce more documents, these supplemental objections ultimately play no role in the dispute before the Court.
5. As set forth in their motion to compel, plaintiffs
seek to receive answers to the two following questions:
1. Did [your counsel] show you whether or not or did she tell you whether
or not she found documents that were responsive to [plaintiffs'] subpoena?
Ickes Depo. at 89.
2. Did you go through the various document requests in the subpoena with your counsel? Ickes Depo. at 11.
6. Plaintiffs seek to compel answers to the following
1. What did you discuss about Kathleen Willey? Ickes Depo. at 159.
2. Did you discuss with regard to the President the letters that Kathleen
Willey had written to him? Ickes Depo. at 161.
3. Did you discuss with the President the release of those letters to
Kathleen Willey--from Kathleen Willey, to the public? Ickes Depo. at 161.
4. But you did discuss the contents of the Kathleen Willey letters with the President. Correct? Ickes Depo. at 168.