The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
SHEILA BUCK, )
)
Plaintiff, )
)
v. ) Case No. 21-CV-0295-CVE-SH
)
C.J. RHOADES, et al., )
)
Defendants. )
OPINION AND ORDER
Before the Court is the motion of Defendant City of Tulsa (the “City”), seeking a
protective order to preclude the deposition of Mayor G.T. Bynum (the “Mayor”). Given
the Mayor’s alleged personal involvement in planning for the rally at issue and unique
knowledge of lead-up to the event, the Court finds a four-hour deposition appropriate in
the specific circumstances of this case. The City’s motion will be denied.
Background
This action centers on the City’s alleged violation of Plaintiff Sheila Buck’s
constitutional rights during her attendance of a campaign rally for President Donald J.
Trump.1 In June 2020, with only a few days’ notice, the Mayor learned that President
Trump would be hosting a campaign rally at the BOK Center in downtown Tulsa. (See
ECF No. 93-12 ¶ 3;2 ECF No. 98-5.3) According to the Amended Complaint, Donald J.
1 The facts, as alleged in Plaintiff’s complaint, are more fully summarized in District Judge
Claire V. Eagan’s ruling on the parties’ motions to dismiss. (See ECF No. 57 at 2-4.)
2 Affidavit of G.T. Bynum: “On . . . June 15, 2020, I learned that . . . Trump intended to
hold a rally . . . . My office received a telephone call from Tulsa Police Chief Wendell
Franklin who indicated he had been notified by the [United States] Secret Service that the
President wanted to hold a rally in Tulsa on June 19, 2020.”
3 Bynum Facebook post of June 16, 2020: “I didn’t even know the invitation had been
extended until BOK Center management contacted the City regarding Police support for
the event.”
Trump for President, Inc. (the “Trump Campaign”) did not seek a special event permit to
block off city streets for private purposes, nor could it, as such applications must be filed
45 days prior to any event. (ECF No. 1 ¶¶ 37-38.) The Mayor agrees that, given the short
notice, there was no time for the Trump Campaign to obtain a permit (ECF No. 93-12 ¶
4), and it is undisputed that no permit was granted.4
On June 18, 2020, in anticipation of crowds in excess of 100,000—and in light of
protests that were happening around the country—the Mayor issued an executive order
noting the establishment of a “federal exclusion zone,” declaring a civil emergency, and
setting a curfew for the blocks surrounding the BOK Center. (ECF No. 93-10.) This order
restricted access and activities in the zone from June 18, 2020, to June 21, 2020. (Id.)
On June 19, 2020, the Mayor spoke with President Trump about the rally. (See ECF Nos.
98-3, 98-7 at 2.) That same day, the Mayor also rescinded the executive order, apparently
as a result of this discussion. (ECF Nos. 93-11,5 98-3,6 98-7 at 2.7) The Tulsa Police
Department (“TPD”) stated that, in lieu of the executive order, the Secret Service had
established a secure zone comprising the streets surrounding the BOK Center. (ECF No.
98-3.) Lieutenant Chris Witt testified that, within a “sterile area” inside this secure zone,
if Trump Campaign members asked to have people removed because of their attire or
4 See also Tulsa, Okla., Code of Ordinances tit. 37, ch. 14 (2018) (outlining the process for
permitting special events), available at
https://library.municode.com/ok/tulsa/codes/code_of_ordinances?nodeId=CD_ORD
_TIT37TURETRCO_CH14SPEV (last visited Feb. 16, 2023).
5 Executive Order No. 2020-12: “a curfew is no longer imminently necessary and
expedient to protect the health, safety, welfare and public peace and to preserve lives and
property.”
6 Tulsa Police Department Facebook post: “after discussing it with President Trump,
Mayor Bynum decided to rescind his Executive Order.”
7 President Trump tweet: “I just spoke to . . . Mayor of Tulsa, G.T. Bynum, who informed
me there will be no curfew tonight or tomorrow . . . .”
protesting, the TPD’s operating practice was to ask such persons to leave and, if they did
not, to arrest them. (ECF No. 98-4 at 52:6-53:14, 69:12-21.)
On June 20, 2020, Plaintiff attended the rally after buying a ticket. (ECF No. 1 ¶
17.) Plaintiff was wearing a black T-shirt reading “I Can’t Breathe” and all black clothing
that referred to the television show, “Watchmen.” (ECF No. 93-5 at 36:10-37:20.) After
entering the secured zone—though still on a public street—Plaintiff was asked to leave by
the Trump Campaign’s private security and, later, by TPD. (ECF No. 93-7 at 2, 4.) When
Plaintiff refused to exit the secured area, she was arrested. (Id.)
Plaintiff asserts claims under 42 U.S.C. § 1983 against the City and the arresting
TPD officers.8 (See generally ECF No. 1.) On January 13, 2023, Plaintiff noticed the
deposition of the Mayor. (ECF No. 93-8.) The City objects, arguing that the deposition
would be unduly burdensome under Rule 26(c)(1) and the “apex doctrine.” (ECF No. 93.)
For reasons set forth below, the undersigned disagrees.
Analysis
I. Legal Standard
A party “may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case”. Fed. R. Civ. P.
26(b)(1). Evidence is relevant if it has any tendency to make a fact of consequence in the
action “more or less probable than it would be without the evidence.” Fed. R. Evid. 401.
Still, even discovery into relevant evidence is not unlimited. A court must limit discovery
it determines “is unreasonably cumulative or duplicative, or can be obtained from some
8 Plaintiff’s claims against the other defendants, along with her free exercise claim against
the City and the arresting TPD officers, have previously been dismissed. (See ECF Nos.
39, 57, 63, 82.)
other source that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P.
26(b)(2)(C)(i). Further, a “court may, for good cause, issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense,”
including forbidding the discovery or limiting it to certain matters. Fed. R. Civ. P.
26(c)(1); see also id. 26(b)(1) (proportionality includes “whether the burden or expense
of the proposed discovery outweighs its likely benefit”). Traditionally, the “party seeking
a protective order has the burden of showing good cause for its issuance.” Okla. ex rel.
Edmondson v. Tyson Foods, Inc., No. 05-CV-329-GKF-PJC, 2009 WL 10694083, at *2
(N.D. Okla. Apr. 24, 2009). However, when addressing proportionality, the party
claiming undue burden generally has better information with respect to that
determination, while the party making the request generally should be best able to explain
how the information is relevant. See Fed. R. Civ. P. 26, advisory ctte.’s note to 2015 am.
These Rule 26 precepts are encompassed in the so-called “apex doctrine,” which
the City argues applies here. While the doctrine “has not been addressed by the Tenth
Circuit, . . . it has been applied by a variety of federal district courts nationwide.” Tierra
Blanca Ranch High Country Youth Program v. Gonzales, 329 F.R.D. 694, 696 (D.N.M.
2019). The “‘apex doctrine’ provides some protection from depositions to high-level
executives and government officials” by recognizing that depositions “severely burden[]
those officers and the entities they represent, and that adversaries might use this severe
burden to their unfair advantage.” Id. (quoting United States ex rel. Galmines v. Novartis
Pharms. Corp., No. 06-3213, 2015 WL 4973626, at *1 (E.D. Pa. Aug. 20, 2015)).
Courts generally use one of two approaches when considering the apex doctrine,
although the factors in each are roughly the same. One approach, taken by some judges
in this district, allows that motions regarding apex officials “are treated using the same
legal standards as apply to any other protective order,” with the additional consideration
of “special factors that . . . apply to such officials.” 9 Tyson Foods, 2009 WL 10694083, at
*2 (internal quotations omitted). A second approach involves application of a rebuttable
presumption that requiring a high-level official to sit for a deposition is an undue burden
unless the official possesses special or unique (and relevant) information that cannot be
obtained by a less intrusive method. See Tierra Blanca Ranch, 329 F.R.D. at 697. The
Court finds that rigid adherence to a rebuttable presumption requiring specific findings
is contrary to the Court’s responsibility under Rule 26 to use “all the information provided
by the parties” and consider the applicable factors “in reaching a case-specific
determination of the appropriate scope of discovery.” Fed. R. Civ. P. 26, advisory ctte.’s
note to 2015 am.
Still, the Court finds it appropriate to address the factors raised in prior decisions
of this court (see n.9, supra) and in cases imposing a rebuttable presumption. After the
required finding of relevance, these include whether the executive has unique personal
knowledge of the matter in dispute; whether the information sought from the executive
can be obtained from another witness or through an alternative discovery method; and
whether sitting for the deposition would serve as a severe hardship for the official in light
of their company or governmental obligations. See Tierra Blanca Ranch, 329 F.R.D. at
697-98. Applying these factors, the Court finds that the City has not demonstrated an
undue burden.
9 These “special factors” include “the executive’s knowledge of the issues in the case, the
availability of others for deposition, the timing of the deposition request, and scheduling
conflicts.” Tyson Foods, 2009 WL 10694083, at *2 (citing Thomas v. Int’l Bus. Machs.,
48 F.3d 478, 483-84 (10th Cir. 1995)). Some courts also focus on whether the apex
witness has unique personal knowledge and whether other witnesses have been deposed
first. Id.
II. Relevance
The City argues that, because the Mayor was not present when Plaintiff was
arrested, he “has no relevant information that cannot be ascertained elsewhere.” (ECF
No. 93 at 1.) This argument, however, focuses on the wrong period of time.
Plaintiff is asserting a Pembaur10 claim against the City, alleging that
implementation of municipal policy violated her First, Fourth, and Fourteenth
Amendment rights. (See ECF No. 1 at ¶¶ 86-92; ECF No. 57 at 24.) “To state a claim
under § 1983, a plaintiff must allege the violation of a right secured by the Constitution .
. . and must show that the alleged deprivation was committed by a person acting under
color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). As for the first element, Judge
Eagan has found that Plaintiff plausibly alleged a violation of her constitutional right of
free speech and her right to be secure against unreasonable seizure. (ECF No. 57 at 7-13.)
As for the second element, a municipality may be said to have acted under color of
state law when the injury is caused by “execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy . . . .” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
Judge Eagan, again, has found that Plaintiff plausibly alleged TPD had a policy of
removing individuals from a public city street at the direction of a private organization
and that such policy was implemented without regard to Plaintiff’s right to be on the
street, her First Amendment rights, or whether there was probable cause to seize, remove,
or arrest her. (ECF No. 57 at 16.) Plaintiff is now seeking discovery to prove those
plausible allegations.
10 Pembaur v. City of Cincinnati, 475 U.S. 469 (1986).
It is reasonable to believe the Mayor has information relevant to whether such a
policy or custom existed. The Supreme Court has made clear “that municipal liability may
be imposed for a single decision by municipal policymakers under appropriate
circumstances.” Pembaur, 475 U.S. at 480. These circumstances include when a
“decisionmaker possesses final authority11 to establish municipal policy with respect to
the action ordered.”12 Id. at 481. A municipal policy or custom may take multiple forms,
including “the decisions of employees with final policymaking authority” or “the
ratification by such final policymakers of the decisions—and the basis for them—of
subordinates to whom authority was delegated subject to these policymakers’ review and
approval.” Bryson v. Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting Hoelter v.
Twin Peaks Charter Acad., 602 F.3d 1175, 1189-90 (10th Cir. 2010)).
As such, “municipal liability under § 1983 attaches where . . . a deliberate choice to
follow a course of action is made from among various alternatives by the official or
officials responsible for establishing final policy with respect to the subject matter in
question.” Pembaur, 475 U.S. at 483. Once Plaintiff has established that such a choice
was made, she “must show that the municipal action was taken with the requisite degree
of culpability and must demonstrate a direct causal link between the municipal action and
11 “Authority to make municipal policy may be granted directly by a legislative enactment
or may be delegated by an official who possesses such authority . . . .” Pembaur, 475 U.S.
at 483.
12 “To determine the identity of the final policymaker, we consider whether: 1) the official
is meaningfully constrained by policies made by another; 2) the official’s decisions are
subject to meaningful review; and 3) the decisions are within the realm of the official’s
authority.” Dempsey v. City of Baldwin, 143 F. App’x 976, 986 (10th Cir. 2005)
(unpublished). Unpublished decisions are not precedential, but they may be cited for
their persuasive value. 10th Cir. R. 32.1(A).
deprivation of federal rights.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)
(quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)).
While the Mayor has no “first-hand information about [Plaintiff’s] arrest” (ECF
No. 93-12 ¶ 6), he appears to have first-hand knowledge of—at a minimum—the
development (or not) of a City policy as alleged in Plaintiff’s complaint. That is, while he
asserts he “delegated the security preparations to TPD and the Secret Service” (id. ¶ 5), he
was directly involved in rescinding the executive order that, according to the TPD, was
replaced with the “secure zone” (ECF Nos. 93-11, 98-3), and was reportedly on a telephone
call with Chief Franklin and Secret Service resident agent Douglas Farrell regarding
possible arrests TPD would make at the rally (ECF No. 98-8 at 60:11-61:10). Moreover,
the Mayor is the only City employee known to have been on the telephone call with
President Trump that purportedly led to a change in the City’s security approach. (ECF
Nos. 98-3, 98-7 at 2.) It is reasonable to assume the two executives might have discussed
the management of crowds and attendees at the rally, given that the executive order—
which touched on exactly that—was rescinded shortly after the call. The Mayor’s
discussion with President Trump, the decisions he made,13 and his communications with
TPD—all could easily have a tendency to make it more or less probable that the City had
the unconstitutional policy alleged in the complaint.
13 “The Mayor shall be the chief executive and administrative officer of the city and shall .
. . [p]reserve the peace and enforce the provisions of . . . all ordinances . . . [and] [p]rovide,
administer, maintain, and operate all police . . . services and functions . . . .” 1989
Amended Charter, art. III, § 1.4, available at
https://library.municode.com/ok/tulsa/codes/code_of_ordinances?nodeId=CD_ORD
_1989AMCH_ARTIIITHMA_S1.4EXADPODU (last visited Feb. 16, 2023).
III. Proportionality and Undue Burden
Looking to the requirements of Rule 26 and the “apex” factors, the Court finds no
undue burden in requiring the Mayor to sit for a four-hour deposition. As noted above, it
appears the Mayor has unique personal knowledge that cannot be obtained from other
sources within the City. Further, the other witnesses likely to have knowledge about
applicable policies or customs, such as Chief Franklin, have already been deposed.
Plaintiff argues Chief Franklin was unable to recall conversations he had with the Mayor
about “the City’s policies and practices for the 2020 Trump Campaign Rally,” thereby
leaving the Mayor as “the only available source of this relevant information.” (ECF No.
98 at 8.) While Chief Franklin appears only to reference lack of recall for a single
conversation (ECF No. 98-6 at 20:20-21:9), the City has filed no reply to refute the
proposition that the Mayor has knowledge Chief Franklin has forgotten. As such, the
Court finds this factor weighs in favor of the Mayor’s testimony.
Finally, because the City does not argue that the requested discovery can be
obtained through an alternative method, the last factor the Court will consider is the
hardship that sitting for a deposition will have on the Mayor’s governmental obligations.
The City generally maintains that the “Mayor’s busy schedule does not allow for a four
hour deposition without wreaking havoc on his schedule and cancelling previous
engagements.” (ECF No. 93 at 7.) However, the parties appropriately conferred on this
issue and identified a day when the Mayor did have a free four-hour window, and Plaintiff
has noticed the deposition for that time. (Compare ECF No. 93-8 with ECF No. 98-9.)
Looking at the factors, the Court finds no undue burden imposed on the Mayor
considering the unique circumstances of this matter, and finds that the discovery sought
is proportional to the needs of the case.
IV. The City’s Request for Alternative Relief
The City argues that “Plaintiffs counsel’s claims that he needs four hours for the
Mayor’s deposition borders on sheer harassment.” (ECF No. 93 at 6.) If the deposition
goes forward, the City requests the Court limit it to two hours and to the topic of the
executive orders. (/d. at 7.) While this Court is cognizant that the Mayor has a busy
schedule and numerous obligations, it does not find the request for a four-hour deposition
to be harassing or in excess of the needs of this case. The Court further finds the City’s
proposed topics to be artificially restrictive, given the relevant information potentially
within the Mayor’s knowledge. The City has given the Court no reason to believe that
Plaintiff's counsel will stray from relevant evidence or engage in behavior that is otherwise
harassing. The four-hour limit on the deposition should further restrain the parties from
wasting too much time on irrelevant pursuits.
Conclusion
IT IS THEREFORE ORDERED that Defendant City of Tulsa’s Opposed Motion for
Protective Order (ECF No. 93) is DENIED.
ORDERED this 16th day of February, 2023.
ln SS
UNITED STATES DISTRICT COURT
10