“Thus, before any of the depositions may go forward, the district court must analyze whether the information sought can be obtained through less intrusive, alternative means, such as further written discovery or depositions of lower-ranking official,” a panel of the U.S. Court of Appeals for the 5th Circuit said in the ruling. “Written findings as to the availability and sufficiency of alternatives need to be entered.”
The panel ruled after government lawyers asked for a partial stay of Doughty’s deposition order.
Plaintiffs in the case include Missouri Attorney General Eric Schmitt and Louisiana Attorney General Jeff Landry, both Republicans.
Doughty had given plaintiffs the ability to depose eight officials, with alternatives listed for Easterly—Lauren Protentis, a lower-level official in the cybersecurity agency—and Flaherty—former White House COVID-19 adviser Andrew Slavitt.
Government lawyers said Murthy, Easterly, and Flaherty are all high-ranking government officials and that the depositions would require the officials to divert time from their jobs and “unavoidably distract” them from “their important and time-sensitive duties—including, for example, overseeing the U.S. Government’s efforts to promote the security and resilience of the Nation’s election infrastructure from cyber, physical, and other threats—and thus would cause irreparable harm.”
Plaintiffs said none of the officials were high-ranking and pointed out that Doughty had found the burdens of sitting for depositions were outweighed by the need to gather more information about the censorship campaign before he rules on a motion for a preliminary injunction.
The appeals court panel concluded that all three officials are high-ranking, siding with the government.
Murthy and Easterly were appointed by Biden, the panel noted. Flaherty is just two levels removed from Biden.
“We find that these officials are at least as high ranking as others we have recognized as such,” the panel said.
That means that plaintiffs must prove that “exceptional circumstances” exist. One of the factors in determining that is whether the information sought can be obtained from other witnesses.
“We do not find the district court’s order considered then rejected for each of the three officials whether the information sought could be obtained from alternative sources. Indeed, the district court’s order gave the plaintiffs the option, but did not require them, to depose lower-ranking officials in lieu of both Easterly and Flaherty—thus suggesting that alternative sources were available. Further, with respect to Flaherty, it appears that the plaintiffs have not taken any written discovery at all,” the panel said, before citing a ruling in another case.
“It is not enough, as the district court found, that these officials may have ‘personal knowledge’ about certain communications. That knowledge may be shared widely or have only marginal importance in comparison to the ‘potential burden’ imposed on the deponent.”
Another Consideration
The panel also noted that the government has already produced “extensive written discovery,” or written answers to questions and documents such as emails. The government claims that the discovery doesn’t reveal any First Amendment violations, while plaintiffs say it does. The government has also said that Doughty should have held off on ruling on the depositions until he decides on the government’s motion to dismiss. That motion was withdrawn following the filing of an amended complaint. A new motion still hasn’t been filed, plaintiffs noted.“The district court should evaluate the prudence of first ruling on the Government’s forthcoming motion to dismiss before authorizing additional depositions,” the appeals court panel said. “Should the district court find that consideration of the Government’s motion is not warranted before these depositions, it should explain why.”
The panel sent the matter back to Doughty for consideration while denying the government’s motion for a stay pending a ruling on the petition.
“We make no ruling on the petition ... at this time,” the panel said.
The panel consisted of Circuit Judges Edith Brown Clement, a George W. Bush appointee; Leslie Southwick, a George W. Bush appointee; and Stephen Higginson, a Barack Obama appointee.
The depositions were scheduled for early December.
The five other depositions have either taken place or are still scheduled to take place.
The other officials are Dr. Anthony Fauci, Biden’s chief medical adviser; Carol Crawford, an official at the U.S. Centers for Disease Control and Prevention; and Daniel Kimmage, an official at the State Department’s Global Engagement Center.
