The Volokh Conspiracy
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Jen Psaki Was "Apex" Official Who Should Generally Not Be Subject to a Deposition
This is in Missouri's and Louisiana's suit alleging various government officials "are infringing the First Amendment by coercing social media platforms to censor speech."
From In re Murphy, decided yesterday by the Fifth Circuit (Judges Edith Brown Clement, Leslie Southwick, and Stephen Higginson):
In May 2022, the States of Missouri and Louisiana, along with five individuals, sued various federal officials and departments in federal district court in Louisiana. The suit alleges the defendants are infringing the First Amendment by coercing social media platforms to censor speech.
In June 2022, the plaintiffs moved for a preliminary injunction and for expedited discovery for the injunctive relief. The district court granted expedited discovery. As relevant here, that discovery included interrogatory responses from the White House Office of the Press Secretary….
[A] party seeking the deposition of a high-ranking executive official must show that "extraordinary circumstances" exist. We agree with other circuits that such a showing is equally applicable to former officials, lest they be ensnared in unnecessary discovery upon leaving office. The district court found, and the plaintiffs do not dispute, that Psaki is high-ranking. Indeed, as a former Assistant to the President, Psaki was one of those in the most senior rank in the White House other than Chief of Staff.
In evaluating whether deposition testimony can be compelled from someone at the apex of government, courts must consider: (1) the deponent's high-ranking status; (2) the substantive reasons for the deposition; and (3) the potential burden the deposition would impose on the deponent. A "key aspect" of this analysis is whether the information sought can be obtained through other means. "A district court commits a clear abuse of discretion when it compels apex testimony absent extraordinary circumstances."
Here, the district court found that the defendants had not provided any "reasonable alternative to" Psaki's deposition and had "disavowed any knowledge of Psaki's information." Our review, though, reveals a clear alternative that both parties actually had accepted. Each stated in district court that Psaki's deposition was unnecessary at this time. The defendants proposed that they amend interrogatory responses after consulting with Psaki, while the plaintiffs requested both amended interrogatories and the designation of lower-level officials with relevant knowledge.
In authorizing Psaki's deposition, the district court did not discuss the parties' alternatives. As we stressed in our previous order, depositions of high-ranking officials are disfavored when there are "less intrusive, alternative means" of obtaining relevant information. Where there are alternatives, testimony is justified only in the "rarest of cases." We certainly do not find such rarity where all parties agreed that testimony was not needed.
{It may well be that the information the plaintiffs seek can be more expeditiously obtained through a deposition. The doctrine protecting high-ranking officials, however, is not altered by its inconvenience. Indeed, the doctrine assumes its application often will be more cumbersome for the party seeking discovery. Because only "extraordinary circumstances" can justify deposing such officials, slower — but less intrusive — means may be required.}
We also disagree with the district court's appraisal of the "substantive reasons" for taking Psaki's deposition. The district court supported its orders by referring to a "series of public statements" Psaki had made regarding social media content moderation. The plaintiffs argue that a deposition is required in order to, among other things, illuminate the meaning of these statements. Much of this desired illumination, though, is apparent from the record. For example, the plaintiffs assert they need additional information regarding "asks," i.e., requests for action the federal government made to social media platforms. The broad content of those "asks," though, is available from Psaki's public statements. {During a July 15, 2021, press conference, Psaki stated that the administration "engage[s] with [social media platforms] regularly and they certainly understand what our asks are." Directly prior to that statement, Psaki explained that there are "proposed changes that we have made to social media platforms" and then proceeded to outline, in detail, the content of the proposed "asks."}
In a similar vein, the plaintiffs say they need to uncover the identities of government officials and social media platforms mentioned in Psaki's statements. The record is already replete with such information. For example, the record identifies White House officials Rob Flaherty, Andrew Slavitt, and several others by name, as being among those in contact with social media platforms. The record also identifies several technology platforms to whom "asks" were directed — Twitter, Facebook, YouTube, and Google.
Further, we recently rejected subjecting certain high-ranking state- government officials to depositions because of generalized "public statements about a matter that later became the subject the litigation." The Paxton court rejected the district court's finding that Paxton had "unique, first-hand knowledge" because of a series of public statements. Id. We held that making "unexceptional" public statements cannot supply the basis for compelled testimony without rendering the "exceptional circumstances test" a hollow doctrine.
So too here. As Press Secretary, Psaki's role was to inform the media of the administration's priorities, not to develop or execute policy. Unsurprisingly, then, the record does not demonstrate that Psaki has unique first-hand knowledge that would justify the extraordinary measure of deposing a high-ranking executive official.
We offer one example. The plaintiffs and district court rely, in part, on Psaki's public statements that the President supports "a robust anti-trust program." The plaintiffs assert they need to probe the meaning behind the statement. To the contrary, this is the sort of "unexceptional," generalized statement that cannot establish the existence of "extraordinary circumstances." …
The allegations that the plaintiffs make against the federal government are, no doubt, serious. They warrant careful consideration. We remain, though, at an early station in litigation. This action was brought over six months ago. An initial motion to dismiss was filed, and another revised to reflect the amended complaint is pending. In the meantime, the district court has authorized extensive discovery, even while acknowledging that "expedited discovery" should be "narrowly tailored." The federal government has produced thousands of pages of written discovery, and four depositions have already taken place.
The central concern of this court is that absent "extraordinary circumstances," depositions of high government officials should not proceed. That rule is a constant across the decades regardless of who the officials are. The circumstances have not yet been shown as extraordinary in light of the possibility of alternatives.
See also this post, which noted that a Magistrate Judged had "openly scoffed" at the view that the Fifth Circuit endorsed here; the chief difference is that the Fifth Circuit concluded the general protection from depositions applies to former high-level officials as well as to current ones.
